History of the Supreme Court of Appeal

Jurisdiction

The Supreme Court of Appeal of South Africa is the successor to the Appellate Division, which was first established in 1910 when the Union of South Africa was established. The name of the Court was changed by the Constitution of 1996.

The Supreme Court of Appeal is, except in respect of certain labour and competition matters, the second highest court in South Africa.  Since August 2013 the Constitutional Court has been the highest court in all matters.

In terms of the Constitution, the Supreme Court of Appeal: –

  • may decide any matter, except certain labour and competition matters; but
  • is purely an appeal court, and it may decide only appeals and issues connected with appeals.

The Supreme Court of Appeal 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.

History

The need for an intermediate court of appeal to hear appeals from the various South African courts was felt as early as 1905 when a conference of attorneys-general held at Bloemfontein proposed that a South African court be set up. During the November 1908 session of the National Convention the constitution of a supreme court was discussed and eventually established in Bloemfontein.

The first Chief Justice was Sir Henry de Villiers, who was made a baron and accordingly became Lord De Villiers, and who had been the chief justice of the Cape since 1873. The ordinary judges of appeal were Sir James Rose Innes and Sir William Solomon.

The Appellate Division Act 12 of 1920 increased the number of (ordinary) judges of appeal from two to four. This was the position until 1948 when legislation was passed empowering the Governor-General to appoint as many judges of appeal as deemed necessary.

In 1929 the Court moved from the building behind the Raadsaal – a building used by the legislative council in the Orange River Colony from 1907 to 1910 and in which the Court sat from 1910. The new building in President Brand Street was opened on 10 October 1929 by the Minister of Justice, Oswald Pirow KC.

Regardless of judicial resistance, the Appeal Court building was in Bloemfontein and this signified that the Union Government had set its final seal of approval on the legislature having made Bloemfontein the judicial capital of the Union as expressed in the South Africa Act.

Since the advent of democracy, the job of the judiciary has been to oversee the country’s transition to democracy, while undergoing transformation itself. Unavoidably, this dual responsibility has generated tension – but much of this has been creative and constructive. In 1994, all but three judges were white. There were only two women on the Bench, none of whom were black. Today, the two highest courts, the Constitutional Court and the Supreme Court of Appeal, are both black-led, black-majority courts. The Supreme Court of Appeal has a significant number of women on the Bench.

The South African judiciary now has an explicitly ‘political’ role. It must enunciate and enforce the values of the Constitution; it must adjudicate difficult questions about the common good, many involving the clashing of fundamental human rights; and, perhaps most difficult of all, it must realise the country’s new values in its own institutions. To do so successfully, the judiciary must itself embody South Africa’s new liberal egalitarian political culture. And it must also be capable of resisting pressures to depart from our Constitution’s founding values and well established legal principles. This requires strong-minded independence.

The creation of the Constitutional Court was the 1993 Interim Constitution’s only substantial change to the structure of the judiciary. The existing Supreme Court structure, with the Appellate Division at its head, was retained. Before the 1996 Constitution, the Constitutional Court and the Appellate Division formed the twin peaks of the judicial structure, with a strict jurisdictional line dividing them. The Constitutional Court was vested with exclusive jurisdiction over constitutional matters and the power to strike down legislation or executive conduct. The Appellate Division continued to be a final court of appeal in all criminal and civil matters, but had no jurisdiction over constitutional issues. As there is no neat line which neatly divides constitutional and ‘other’ matters, this structure was clearly problematic.

Under the 1996 Constitution, the Supreme Court of Appeal acquired constitutional jurisdiction, while the Constitutional Court was given jurisdiction to develop the common law to reflect constitutional values. The Appellate Division became the Supreme Court of Appeal which, together with the High Courts, was given power to strike down Presidential conduct, Acts of Parliament and provincial Acts, although subject to confirmation by the Constitutional Court. The Court has also been called upon, when interpreting legislation or developing the common law, to promote the spirit, purport and objects of the Bill of Rights. This ushered in a radical new era of constitutional adjudication.

However, there remained a degree of uncertainty as the split jurisdiction model survived to some extent in the form of twin apex courts – with the Constitutional Court being the apex court in respect of all constitutional matters, and the Supreme Court of Appeal being the apex court in respect of all non-constitutional matters.  The absence of a neat division between constitutional and non-constitutional issues, which had bedevilled the courts since 1994, continued to cause confusion: which court was truly the apex court in any particular matter?  It soon became apparent that the extensive array of rights and guarantees under the Constitution, combined with the Constitutional Court’s ambitious and purposive interpretative approach, had the result that very nearly every case could be characterised as constitutional in nature.  And as it was the Constitutional Court that had the power to determine whether a matter was constitutional, the reality was that, except in limited circumstances, that court was the de facto apex court.  As from August 2013, in terms of the Constitution Seventeenth Amendment Act, the Constitution was amended and the Constitutional Court is now expressly recognised as the highest court in South Africa, though it may only hear constitutional matters and matters which raise an arguable point of law of general public importance.

At the same time as the Constitutional Amendment came into force, the legislation governing the structure of the courts (the Supreme Court Act of 1959) was repealed and replaced by the Superior Courts Act of 2013.  This Act was intended to rationalise the country’s court structure and bring it into line with the Constitution.  As a result, the Supreme Court of Appeal is now formally recognised in the governing legislation as a separate court and not merely an appellate division of the country’s High Court.

The South African judiciary since 1994 has confirmed that an independent judiciary is essential to a vibrant democracy. The Supreme Court of Appeal has internalised the values of our Constitution, and has been true to them, articulating the requirements of the Constitution fairly, resolutely and consistently, despite significant political and popular resistance.

Court Building

The first and only Court building was opened on 1 October 1929 and was extended in 1967. More recently, a second extension was completed in 2011.

The building is said to have been built in a free Renaissance style.  The oldest part was built with sandstone from Ladybrand, the newer eastern wing with sandstone from Ficksburg, and the latest extension from Mookgophong in Limpopo.

Above the main entrance and set in stone is, in the words of Lord De Villiers, first Chief Justice of South Africa: . . . the Helmet of the armour of Faith, symbolical of the nation’s fast faith in the justice and the power of the law; the Keys of Emancipation from Tyranny, where there is no law; and the Lamp and the Torches of Truth’. The south entrance bears the head of Minerva, the Roman goddess of wisdom and protector of art and science, and the northern door, that of Jupiter, the head of the Roman pantheon.

Library

The Library houses approximately 43 000 volumes, of which about 4 000 titles are ‘old authorities’ which consist, for the most part, of the writings of the Dutch and Continental jurists of the 16th, 17th and 18th centuries. The two oldest works in the library are both dated 1544. These are the complete works of Bartolus (1313-1357) in 10 volumes and those of his pupil, Baldus (1327-1400). Written in Latin, they provide a commentary on the Corpus Juris Civilis of the Roman Emperor Justinian. Another unique item is the Tractatus Universi Juris, compiled at the end of the 16th century on the instruction of Pope Gregory. These works are not merely of antiquarian interest. Given the unique status of the ‘old authorities’ in the South African legal system, they are still consulted and occasionally referred to in judgments of the Court.

The Library also houses a comprehensive collection of South African textbooks and a fairly representative spread of Anglo-American and Continental court reports, textbooks and legal periodicals.

The Library is primarily for the use of the judges of the Court. Court staff also has access to it as do members of the legal profession, and the public, under restricted conditions.

Portrait Gallery

In the corridor leading to the Library hang photographs of the chief justices and most of the judges of the Court since its inception in 1910.

Dominating the old entrance hall, on the stairway, is the bust of Lord de Villiers (1873-1914), the Union of South Africa’s first chief justice.  He presided over the National Convention which led to the creation of the Union of South Africa.  A forceful personality and a man of immense dignity, he contributed enormously throughout to the shaping of South African law.

His successor was Sir James Rose Innes (1855-1942) of whom there is both a painting on the stairway and a bust in the Library.  He was renowned for his learning and the lucidity of his judgments

In one of the wings of the Library, there is the bust of Tielman Roos (1879-1935), a former Minister of Justice, a dynamic, jovial and popular political figure who was the only member of this court to be appointed directly as a judge of appeal from the ranks of politicians.

Interesting Facts

The Supreme Court of Appeal is still in possession of each and every judgment delivered since 1910.

Upon arrangement a guided tour of the Appeal Court can be undertaken during/out of term. The tour is free of charge with a duration of about 40 – 60 minutes.

For the full history of the Supreme Court of Appeal, click here.