How cases reach the Constitutional Court
A case can reach the Constitutional Court in a variety of ways:
as the result of an appeal from a judgment of the High Court or the Supreme Court of Appeal;
as a direct application to the Court, asking it to sit as a court of first and last instance because of the urgency of the matter;
as the result of the court below declaring a piece of legislation invalid, which requires confirmation by the Constitutional Court; or
as a Bill parliament asks the Court to review.
The Court has the discretion whether or not to hear a matter; an exception is where an Act has already been declared invalid and the Court is required to confirm the finding.
Typically, cases that reach the Constitutional Court start in the High Court, which has the power to grant various remedies and can declare legislation invalid. Any decision that invalidates provincial or parliamentary legislation or any conduct of the President must be confirmed by the Constitutional Court before it has any effect.
If the High Court rules against an application, the Constitutional Court may be approached on appeal. Since the Court may only hear constitutional matters, an applicant must show that the case concerns a constitutional matter. The Constitutional Court judges will decide if an important principle relating to the interpretation of the Constitution has been raised and will consider whether there is a reasonable prospect that the appeal may succeed. But there is no automatic right of appeal.
If the Court decides to grant leave to appeal, or if it is unsure and wishes to hear argument on whether leave to appeal should be granted, the case is set down on a certain date so that argument from the parties can be heard. Each party submits written submissions before the date of argument so that the judges can familiarise themselves with the case and the position taken by each party.
Sometimes at this point other interested parties may ask to be joined in proceedings, or be admitted as an amicus curiae (friend of the court). They too will make written submissions and sometimes give oral argument if directed by the chief justice to do so.
As for direct access, section 167 of the Constitution allows a person, "when it is in the interests of justice and with leave of the Constitutional Court", to bring a matter directly to the Constitutional Court; or to appeal directly to the Constitutional Court from any other court. This procedure is ordinarily permitted only in exceptional circumstances.
The Constitutional Court deals with the matter of direct access to the court in the judgment handed down in Dudley v City of Cape Town and Another .
The procedure in bringing a case is set out in the rules of the Constitutional Court .
How it decides cases
The Constitution requires that a matter be heard by a quorum of at least eight judges. In ordinary practice, all 11 judges hear every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed.
The Court does not hear evidence or question witnesses. As a court that functions largely as a court of appeal, it considers the record of the evidence heard in the original court that heard the matter.
A result of this is that the Court works largely with written arguments presented to it. The hearings are intended to tackle difficult issues raised by these arguments.
Each judge sitting in a case must indicate his or her decision; the ruling is then determined by majority vote. The reasons are published in a written judgment.
Once a case has been set down, the chief justice will ask a particular judge to do special preparation and possibly write the judgment. Usually cases will be spread out so that each judge writes from time to time.
Once all parties have been heard, the judges meet to discuss the possible outcome of the case. This is one of the central features of the Court: the judges act collegially and meet often to discuss important and controversial aspects of a case. A few days later, the writing judge will submit a memo to all the others, indicating where he or she stands. If there are disagreements about the decision or the route taken in reaching it, the judge who disagrees with the main writer will prepare to write a concurrence or dissent.
Writing a judgment is a long process. The judge prepares a first draft and circulates it. The judges then meet and submit comments or changes. If a dissenting judgment has been written, the justices will begin to indicate which judgment they will follow and why. Sometimes lengthy discussions take place.
Once consensus is reached, the judgments are thoroughly checked. The judgment is then handed down - released at a public sitting of the Court.
How the Court Functions
Hearings and hours
The Court's hearings are open to the public. The sessions are: 15 February to 31 March; 1 to 31 May; 1 August to 30 September; and 1 to 30 November. The ordinary hours of argument are: 10am to 11:15am; 11:30am to 12:45pm; and 2:15pm to 4pm. It is during these periods that the Court has public hearings.
But the bulk of the judges' work consists of analysing documents and preparing judgments, done in the library, chambers and conference room. Each judge has two full-time researchers.
The media
The Constitutional Court decides matters of great importance and interest to the public, so it strives to assist the media in reporting on its work.
The press may attend hearings and cameras in fixed positions are usually allowed in Court throughout a hearing. The Court prepares a media summary before argument and another for distribution after pronouncing its decision.
The law clerks and the library
The Constitutional Court is unique in that the judges have the help of two clerks each - see the law clerks page for more. The judges also depend heavily on the library , a major repository that is on its way to becoming a resource for the whole of Africa.
Deadlines for filing documents with the Constitutional Court
Deadlines or time limits are imposed by the Court Rules . They vary depending on the nature and stage of the proceedings involved. It is a litigant's responsibility to check the rules.
The main categories
Urgent applications
In terms of rule 12 , the Chief Justice may dispense with the usual requirements for applications, including deadlines. The need to do so must be motivated in the affidavit supporting the urgent application.
Applications for direct access to the Court
Rule 18 deals with these applications. They will only be considered by the Court if exceptional circumstances exist. Once such an application has been made, the following deadlines apply:
Any party opposing the application must file notice of intention to oppose within 10 court days (court days running from Monday to Friday).
After notice of intention to oppose has been received or the 10 days has expired, the Chief Justice shall issue directions concerning the matter - including setting deadlines for the filing of affidavits and written submissions, if necessary.
Applications for leave to appeal
Applications for leave to appeal against the decision of any court are dealt with under rule 19 . The applicable deadlines are:
The application must be brought within 15 court days of the date of the decision against which leave to appeal is sought.
Within 10 court days of such application, the respondent(s) must indicate in writing whether they oppose the application and, if so, on what grounds.
A respondent wishing to cross-appeal to the Court must file such application for leave to cross-appeal within 10 days of the filing of the application for leave to appeal.
The Court will then decide how to deal with the matter, and directions imposing further deadlines may be issued.
Confirmation proceedings
In terms of rule 16 , a registrar of a court making an order of constitutional invalidity must lodge a copy of that order with the registrar of this Court within 15 court days. However, any person entitled to do so may appeal against that order of invalidity within 15 court days of the making of such order. Similarly, a person may apply for the confirmation of an order of invalidity within 15 days of the making of the order.
Amici curiae
Unless the Chief Justice has issued directions imposing deadlines for applications to be admitted as an amicus, rule 10(5) says that such applications must be made not later than five court days after the lodging of the respondent's written submissions. If consent to your admission as an amicus has been received from the parties in the matter, such written consent must be lodged with the registrar within five court days of it having been obtained.
Directions of the Court
Once an application has been filed, the Chief Justice may issue directions in which further deadlines are imposed - for example, for the filing of written submissions and applications to be admitted as an amicus, and for the setting of dates for hearings.
Condonation of non-compliance with deadlines
The Court has the power to condone non-compliance with the rules, including deadlines, in appropriate cases. Parties who fail to comply with deadlines must file an application for condonation, or include a prayer for condonation in their main application, in which the reason for failure to comply with the rules must be provided.
How cases reach the Constitutional Court A case can reach the Constitutional Court in a variety of ways:
as the result of an appeal from a judgment of the High Court or the Supreme Court of Appeal;
as a direct application to the Court, asking it to sit as a court of first and last instance because of the urgency of the matter;
as the result of the court below declaring a piece of legislation invalid, which requires confirmation by the Constitutional Court; or
as a Bill parliament asks the Court to review.
The Court has the discretion whether or not to hear a matter; an exception is where an Act has already been declared invalid and the Court is required to confirm the finding.
Typically, cases that reach the Constitutional Court start in the High Court, which has the power to grant various remedies and can declare legislation invalid. Any decision that invalidates provincial or parliamentary legislation or any conduct of the President must be confirmed by the Constitutional Court before it has any effect.
If the High Court rules against an application, the Constitutional Court may be approached on appeal. Since the Court may only hear constitutional matters, an applicant must show that the case concerns a constitutional matter. The Constitutional Court judges will decide if an important principle relating to the interpretation of the Constitution has been raised and will consider whether there is a reasonable prospect that the appeal may succeed. But there is no automatic right of appeal.
If the Court decides to grant leave to appeal, or if it is unsure and wishes to hear argument on whether leave to appeal should be granted, the case is set down on a certain date so that argument from the parties can be heard. Each party submits written submissions before the date of argument so that the judges can familiarise themselves with the case and the position taken by each party.
Sometimes at this point other interested parties may ask to be joined in proceedings, or be admitted as an amicus curiae (friend of the court). They too will make written submissions and sometimes give oral argument if directed by the chief justice to do so.
As for direct access, section 167 of the Constitution allows a person, "when it is in the interests of justice and with leave of the Constitutional Court", to bring a matter directly to the Constitutional Court; or to appeal directly to the Constitutional Court from any other court. This procedure is ordinarily permitted only in exceptional circumstances.
The Constitutional Court deals with the matter of direct access to the court in the judgment handed down in Dudley v City of Cape Town and Another .
The procedure in bringing a case is set out in the rules of the Constitutional Court .
How it decides cases The Constitution requires that a matter be heard by a quorum of at least eight judges. In ordinary practice, all 11 judges hear every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed.
The Court does not hear evidence or question witnesses. As a court that functions largely as a court of appeal, it considers the record of the evidence heard in the original court that heard the matter.
A result of this is that the Court works largely with written arguments presented to it. The hearings are intended to tackle difficult issues raised by these arguments.
Each judge sitting in a case must indicate his or her decision; the ruling is then determined by majority vote. The reasons are published in a written judgment.
Once a case has been set down, the chief justice will ask a particular judge to do special preparation and possibly write the judgment. Usually cases will be spread out so that each judge writes from time to time.
Once all parties have been heard, the judges meet to discuss the possible outcome of the case. This is one of the central features of the Court: the judges act collegially and meet often to discuss important and controversial aspects of a case. A few days later, the writing judge will submit a memo to all the others, indicating where he or she stands. If there are disagreements about the decision or the route taken in reaching it, the judge who disagrees with the main writer will prepare to write a concurrence or dissent.
Writing a judgment is a long process. The judge prepares a first draft and circulates it. The judges then meet and submit comments or changes. If a dissenting judgment has been written, the justices will begin to indicate which judgment they will follow and why. Sometimes lengthy discussions take place.
Once consensus is reached, the judgments are thoroughly checked. The judgment is then handed down - released at a public sitting of the Court.
How the Court Functions
Hearings and hours
The Court's hearings are open to the public. The sessions are: 15 February to 31 March; 1 to 31 May; 1 August to 30 September; and 1 to 30 November. The ordinary hours of argument are: 10am to 11:15am; 11:30am to 12:45pm; and 2:15pm to 4pm. It is during these periods that the Court has public hearings.
But the bulk of the judges' work consists of analysing documents and preparing judgments, done in the library, chambers and conference room. Each judge has two full-time researchers.
The media
The Constitutional Court decides matters of great importance and interest to the public, so it strives to assist the media in reporting on its work.
The press may attend hearings and cameras in fixed positions are usually allowed in Court throughout a hearing. The Court prepares a media summary before argument and another for distribution after pronouncing its decision.
The law clerks and the library
The Constitutional Court is unique in that the judges have the help of two clerks each - see the law clerks page for more. The judges also depend heavily on the library , a major repository that is on its way to becoming a resource for the whole of Africa.
Deadlines for filing documents with the Constitutional Court
Deadlines or time limits are imposed by the Court Rules . They vary depending on the nature and stage of the proceedings involved. It is a litigant's responsibility to check the rules.
The main categories
Urgent applications
In terms of rule 12 , the Chief Justice may dispense with the usual requirements for applications, including deadlines. The need to do so must be motivated in the affidavit supporting the urgent application.
Applications for direct access to the Court
Rule 18 deals with these applications. They will only be considered by the Court if exceptional circumstances exist. Once such an application has been made, the following deadlines apply:
Any party opposing the application must file notice of intention to oppose within 10 court days (court days running from Monday to Friday).
After notice of intention to oppose has been received or the 10 days has expired, the Chief Justice shall issue directions concerning the matter - including setting deadlines for the filing of affidavits and written submissions, if necessary.
Applications for leave to appeal
Applications for leave to appeal against the decision of any court are dealt with under rule 19 . The applicable deadlines are:
The application must be brought within 15 court days of the date of the decision against which leave to appeal is sought.
Within 10 court days of such application, the respondent(s) must indicate in writing whether they oppose the application and, if so, on what grounds.
A respondent wishing to cross-appeal to the Court must file such application for leave to cross-appeal within 10 days of the filing of the application for leave to appeal.
The Court will then decide how to deal with the matter, and directions imposing further deadlines may be issued.
Confirmation proceedings
In terms of rule 16 , a registrar of a court making an order of constitutional invalidity must lodge a copy of that order with the registrar of this Court within 15 court days. However, any person entitled to do so may appeal against that order of invalidity within 15 court days of the making of such order. Similarly, a person may apply for the confirmation of an order of invalidity within 15 days of the making of the order.
Amici curiae
Unless the Chief Justice has issued directions imposing deadlines for applications to be admitted as an amicus, rule 10(5) says that such applications must be made not later than five court days after the lodging of the respondent's written submissions. If consent to your admission as an amicus has been received from the parties in the matter, such written consent must be lodged with the registrar within five court days of it having been obtained.
Directions of the Court
Once an application has been filed, the Chief Justice may issue directions in which further deadlines are imposed - for example, for the filing of written submissions and applications to be admitted as an amicus, and for the setting of dates for hearings.
Condonation of non-compliance with deadlines
The Court has the power to condone non-compliance with the rules, including deadlines, in appropriate cases. Parties who fail to comply with deadlines must file an application for condonation, or include a prayer for condonation in their main application, in which the reason for failure to comply with the rules must be provided.