Section 165-172 Constitution of South Africa 1996

Section 165-172 Constitution of South Africa 1996

Section 165, 166, 167, 168, 169, 170, 171, and 172 of the Constitution of South Africa 1996 (as amended), among others, are under Chapter 8 of the Constitution. Chapter 8 is titled ‘Courts and Administration of Justice‘.

Section 165 Constitution of South Africa 1996

Judicial authority

1. The judicial authority of the Republic is vested in the courts.

2. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

3. No person or organ of state may interfere with the functioning of the courts.

4. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

5. An order or decision issued by a court binds all persons to whom and organs of state to which it applies.

6. The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the excercise of the judicial functions of all courts.

[Sub-s. (6) added by s. 1 of Constitution Seventeenth Amendment Act of 2012.]

Section 166 Constitution of South Africa 1996

Judicial system

The courts are ­

a. the Constitutional Court;

b. the Supreme Court of Appeal;

c. the High Court of South Africa, and any high court of appeal that may be established by an Act of Parliament to hear appeals from any court of a status similar to the High Court of south Africa;

d. the Magistrates’ Courts; and

e. any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Court of South Africa or the Magistrates’ Courts.

[Sub-s (c) and (e) substituted by s. 2 of the Constitution Seventeenth Amendment Act of 2012.]

Section 167 Constitution of South Africa 1996

Constitutional Court

1. The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.

[Sub-s. (1) substituted by s. 11 of Act No. 34 of 2001.]

2. A matter before the Constitutional Court must be heard by at least eight judges.

3. The Constitutional Court ­

a. is the highest court of the Republic; and

b. may decide

i. constitutional matters; and

ii. any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and

c. makes the final decision whether a matter is within its jurisdiction. 

[Sub-s (3) substituted by s. 3 of the Constitution Seventeenth Amendment Act of 2012.]

4. Only the Constitutional Court may ­

a. 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;

b. decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121;

c. decide applications envisaged in section 80 or 122;

d. decide on the constitutionality of any amendment to the Constitution;

e. decide that Parliament or the President has failed to fulfil a constitutional obligation; or

f. certify a provincial constitution in terms of section 144. 

5. The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court if South Afirca, or a court of similar status, before that order has any force.

[Sub-s (5) substituted by s. 3 of the Constitution Seventeenth Amendment Act of 2012.]

6. National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court ­

a. to bring a matter directly to the Constitutional Court; or

b. to appeal directly to the Constitutional Court from any other court. 

7. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution.

Section 168 Constitution of South Africa 1996

Supreme Court of Appeal

1. The Supreme Court of Appeal consists of a President, a Deputy President and the number of judges of appeal determined in terms of an Act of Parliament.

[Sub-s. (1) substituted by s. 12 of Act No. 34 of 2001.]

2. A matter before the Supreme Court of Appeal must be decided by the number of judges determined in terms of an Act of Parliament.

[Sub-s. (2) substituted by s. 12 of Act No. 34 of 2001.]

3.  a. The Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a status similar to the High Court of South Africa, except in respects of labour or competition matters to such extent as may be determined by an Act of Parliament.

b. The Supreme Court of Appeal may decide only–

i. appeals;

ii. issues connected with appeals; and

iii. any other matter that may be referred to it in circumstances defined by an Act of Parliament.

[Sub-s (3) substituted by s. 4 of the Constitution Seventeenth Amendment Act of 2012.]

Section 169 Constitution of South Africa 1996

High Court of South Africa

1. The High Court of South Africa may decide ­–

a. any constitutional matter except a matter that ­

i. the Constitutional Court has agreed to hear directly in terms of section 167(6)(a); or

ii. is assigned by an Act of Parliament to another court of a status similar to the High Court of South Africa; and

b. any other matter not assigned to another court by an Act of Parliament.

2. The High Court of South Africa consists of the Divisions determined by an Act of Parliament, which Act must provide for–

a. the establishing of Divisions, with one or two more seats in a Division; and

b. the assigning of jurisdiction to a Division or a seat with a Division.

3. Each Division of the High Court of South Afric–

a. has a Judge President;

b. may have one or more Deputy Judges President; and

c. has the number of other judges determined in terms of national legislation.

[Sub-s (3) substituted by s. 4 of the Constitution Seventeenth Amendment Act of 2012.]

Section 170 Constitution of South Africa 1996

Other courts

All courts other than those referred to in sections 167, 168 and 169 may decide any matter determined by an Act of Parliament, but a court of a status lower than the High Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any conduct of the President.

[S. 170 substituted by s. 6 of the Constitution Seventeenth Amendment Act of 2012.]

Section 171 Constitution of South Africa 1996

Court procedures

All courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation.

Section 172 Constitution of South Africa 1996

Powers of courts in constitutional matters

1. When deciding a constitutional matter within its power, a court ­

a. must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and

b. may make any order that is just and equitable, including ­

i. an order limiting the retrospective effect of the declaration of invalidity; and

ii. an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.

2.   a. The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

[Par (a) substituted by s. 7 of the Constitution Seventeenth Amendment Act of 2012.]

b. A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct.

c. National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court.

d. Any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.

See also: Section 173-180 Constitution of South Africa 1996