Judiciary Reform: Interim Constitution Accord

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 96 Judicial authority:

(1) The judicial authority of the Republic shall vest in the courts established by this Constitution and any other law.

(2) The judiciary shall be independent, impartial and subject only to this Constitution and the law.

(3) No person and no organ of state shall interfere with judicial officers in the performance of their functions.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 97 Appointment of Chief Justice and President of Constitutional Court:

(1) There shall be a Chief Justice of the Supreme Court of South Africa, who shall, subject to Section 104, be appointed by the President in consultation with the Cabinet and after consultation with the Judicial Service Commission.

(2)(a) There shall be a President of the Constitutional Court, who shall, subject to Section 99, be appointed by the President in consultation with the Cabinet and after consultation with the Chief Justice.

(b) Unless the new constitutional text provides otherwise, the President of the Constitutional Court shall hold office for a non-renewable period of seven years.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 98 Constitutional Court and its jurisdiction:

(1) There shall be a Constitutional Court consisting of a President and 10 other judges appointed in terms of Section 99.

(2) The Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of this Constitution, including:

(a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3;

(b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state;

(c) any inquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution;

(d) any dispute over the constitutionality of any Bill before Parliament or a provincial legislature, subject to Subsection (9);

(e) any dispute of a constitutional nature between organs of state at any level of government;

(f) the determination of questions whether any matter falls within its jurisdiction; and

(g) the determination of any other matters as may be entrusted to it by this Constitution or any other law.

(3) The Constitutional Court shall be the only court having jurisdiction over a matter referred to in Subsection (2), save where otherwise provided in Section 101 (3) and (6).

(4) A decision of the Constitutional Court shall bind all persons and all legislative, executive and judicial organs of state.

(5) In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified.

(6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof:

(a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or

(b) passed after such commencement, shall invalidate everything done or permitted in terms thereof.

(7) In the event of the Constitutional Court declaring an executive or administrative act or conduct or threatened executive or administrative act or conduct of an organ of state to be unconstitutional, it may order the relevant organ of state to refrain from such act or conduct, or, subject to such conditions and within such time as may be specified by it, to correct such act or conduct in accordance with this Constitution.

(8) The Constitutional Court may in respect of the proceedings before it make such order as to costs as it may deem just and equitable in the circumstances.

(9) The Constitutional Court shall exercise jurisdiction in any dispute referred to in Subsection (2)(d) only at the request of the Speaker of the National Assembly, the President of the Senate or the Speaker of a provincial legislature, who shall make such a request to the Court upon receipt of a petition by at least one-third of all the members of the National Assembly, the Senate or such provincial legislature, as the case may be, requiring him or her to do so.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 99 Composition of Constitutional Court and Appointment of Judges of Constitutional Court:

(1) Unless the new constitutional text provides otherwise, the judges of the Constitutional Court shall be appointed by the President for a non-renewable period of seven years.

(2) No person shall be qualified to be appointed President or a judge of the Constitutional Court unless he or she:

(a) is a South African citizen; and

(b) is a fit and proper person to be a judge of the Constitutional Court; and

(c)(i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having so qualified, practiced as an advocate or an attorney or lectured in law at a university; or

(ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitutional law relevant to the application of this Constitution and the law of the Republic.

(3) Four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice.

(4) Subject to Subsection (5), six judges of the Constitutional Court shall be appointed by the President in consultation with the Cabinet and after consultation with the President of the Constitutional Court: Provided that not more than two persons may be appointed from the category of persons referred to in Subsection (2)(c)(ii).

(5)(a) Subject to Subsection (6), an appointment or appointments under Section 97 (2) or Subsection (4) or (7) of this section shall only be made from the recommendations of the Judicial Service Commission, and with due regard to its reasons for such recommendations, of not more than three nominees in excess of the number of persons required to be appointed: Provided that in respect of the first appointment after the commencement of this Constitution of the six judges referred to in Subsection (4), the Judicial Service Commission shall submit a list of ten nominees.

(b) If the appointing authorities decide not to accept any or some of such recommendations, the Judicial Service Commission shall be informed thereof and be furnished with the reasons therefore.

(c) After having been informed in terms of Paragraph (b), the Judicial Service Commission shall, in accordance with Paragraph (a), submit further recommendations, whereafter the appointing authorities shall make the appointment or appointments from the recommendations as supplemented in terms of this paragraph.

(d) In submitting its recommendations to the appointing authorities in terms of Paragraphs (a) and (c) the Judicial Service Commission shall have regard to the need to constitute a court which is independent and competent and representative in respect of race and gender.

(6) Subsection (5) shall not apply to the first appointment after the commencement of this Constitution of the President of the Constitutional Court under Section 97 (2).

(7) Vacancies in the Constitutional Court shall be filled:

(a) in the case of a vacancy in the office of a judge appointed under Subsection (3), in accordance with that subsection; and

(b) in the case of a vacancy in the office of a judge appointed under Subsection (4), in accordance with that subsection.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 100 Engaging the Constitutional Court:

(1) The conditions upon which the Constitutional Court may be seized of any matter within its jurisdiction, and all matters relating to the proceedings of and before the Court, shall be regulated by rules prescribed by the President of the Constitutional Court in consultation with the Chief Justice, which rules shall be published in the Gazette.

(2) The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 101 Supreme Court:

(1) There shall be a Supreme Court of South Africa, which shall consist of an Appellate Division and such provincial and local divisions, and with such areas of jurisdiction, as may be prescribed by law.

(2) Subject to this Constitution, the Supreme Court shall have the jurisdiction, including the inherent jurisdiction, vested in the Supreme Court immediately before the commencement of this Constitution, and any further jurisdiction conferred upon it by this Constitution or by any law.

(3) Subject to this Constitution, a provincial or local division of the Supreme Court shall, within its area of jurisdiction, have jurisdiction in respect of the following additional matters, namely:

(a) any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3;

(b) any dispute over the constitutionality of any executive or administrative act or conduct or threatened executive or administrative act or conduct of any organ of state;

(c) any inquiry into the constitutionality of any law applicable within its area of jurisdiction, other than an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution;

(d) any dispute of a constitutional nature between local governments or between a local and a provincial government;

(e) any dispute over the constitutionality of a Bill before a provincial legislature, subject to Section 98 (9);

(f) the determination of questions whether any matter falls within its jurisdiction; and

(g) the determination of any other matters as may be entrusted to it by an Act of Parliament.

(4) For the purposes of exercising its jurisdiction under Subsection (3), a provincial or local division of the Supreme Court shall have the powers of the Constitutional Court in terms of Section 98 (5), (6), (7), (8) and (9) relating to the interpretation, protection and enforcement of this Constitution.

(5) The Appellate Division shall have no jurisdiction to adjudicate any matter within the jurisdiction of the Constitutional Court.

(6) If the parties to a matter falling outside the additional jurisdiction of a provincial or local division of the Supreme Court in terms of Subsection (3), agree thereto, a provincial or local division shall, notwithstanding any provision to the contrary, have jurisdiction to determine such matter: Provided that a provincial or local division shall not acquire jurisdiction in terms of this subsection with regard to any matter referred to in Section 102 (12).

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 7 Judicial Authority and Administration of Justice, Section 241 Transitional arrangements: Judiciary:

(1) Every court of law existing immediately before the commencement of this Constitution in an area which forms part of the national territory, shall be deemed to have been duly constituted in terms of this Constitution or the laws in force after such commencement, and shall continue to function as such in accordance with the laws applicable to it until changed by a competent authority: Provided-

(a) that an appellate division of a supreme court which immediately before the commencement of this Constitution exercised jurisdiction in respect of an area which forms part of the national territory, other than the Appellate Division of the Supreme Court of South Africa, shall cease to exist with effect from the date of commencement of the Constitution of the Republic of South Africa Third Amendment Act, 1994;

(b) that any case pending before any such appellate division immediately before the said date shall be disposed of by such appellate division and the judges of appeal serving in such appellate division as if such division had not ceased to exist; and

(c) that any person who immediately before the said date was the chief justice in respect of any such appellate division, shall continue in office without any change in the terms and conditions of his or her service and shall be deemed to be the Judge President of the supreme court of which that appellate division previously formed part until the existing court structures have been rationalised as contemplated in section 242 (1). [Sub-s. (1) amended by s. 15 (a) of Act 13 of 1994.]

The National Peace Agreement, Article 1.13:

An effective and credible criminal judicial system requires the swift and just dispensation of justice. This in turn will promote the restoration of peace and prosperity to communities, freeing them of the ravages of violence and intimidation. Special attention should be given to unrest related cases by setting up Special Criminal Courts specifically for this purpose.

National Peace Agreement, Chapter 10 Special Criminal Courts:

10.1 An effective and credible criminal judicial system requires the swift but just dispensation of justice. This in turn will promote the restoration of peace and prosperity to communities, freeing them of the ravages of violence and intimidation. Special attention should be given to unrest related cases, cases of public violence and cases involving intimidation by setting up Special Criminal Courts specifically for the purpose.

10.2 It is agreed that the Department of Justice, in co-operation with local legal practitioners of the Law Societies and the Bar, should establish project committees to advise the Department of Justice on the administration of the proposed Special Criminal
Courts.

10.3 These Special Criminal Courts will not deal with ordinary day-to-day crime. Its function will be to deal with unrest related cases. As a result, cases being heard in these courts will be disposed of swiftly and effectively without delay. Cognisance is taken of the initiative to establish mobile courts in certain areas to bring justice closer to the people. The initiative is supported.

10.4 Special Criminal Courts should be located in areas where its services are most urgently needed. This implies that cases can be heard more expeditiously than ordinary criminal courts would be able to. This ensures that perpetrators of violence and intimidation will not unnecessarily be let out on bail enabling them to become reinvolved in violence and intimidation. This also ensures that those who are maliciously accused of being violent can have their names cleared sooner than is the case at present.

10.5 The Criminal Law Amendment Act of 1991 provides a mechanism for a programme of witness protection. It is based on the voluntary co-operation of the person threatened by others and can also protect his family members. It is agreed that these provisions be actively utilised in areas affected by unrest.

10.6 For unrest, Political violence and intimidation related offences to be effectively combated, criminals should be prosecuted as effectively as possible and at the earliest instance.

10.7 It is acknowledged that for Special Criminal Courts to be effective, special procedural and evidential rules should apply. The parties therefore commit themselves to promoting procedural and evidential rules that will facilitate the expeditious and effective hearing of criminal cases.

Implementation History

1993

Minimum Implementation

The debate surrounding the establishment of a constitutional state in which the rule of law prevails took place, which resulted in the CODESA (Convention for a Democratic South Africa) Declaration of Intent on December 20, 1991.

As the peace process moved forward, the negotiators representing the ANC and the South African government “agreed upon a final two-chamber legislature elected by proportional representation, an independent judicial system and a bill of rights, as key features of the proposed constitution."1

Chief Justice of South Africa, Mr. Justice Corbett, came out in support of a constitutional court for South Africa, as recommended by the Law Commission.2

A draft constitution for the transitional Government of National Unity was published on July 26, 1993. “The draft constitution states flatly that the new constitution ‘shall adhere to and give effect to the constitutional principles,’ and that a special constitutional court shall have to certify that the constitution conforms with these principles before it comes into operation. Nearly 30 constitutional principles - ranging from the separation of the legislative, executive and judicial functions of government to provision of regional government - are contained in the draft constitution."3

The Interim Constitution was signed on November 17, 1993. The white-dominated Parliament voted to approve a new democratic constitution on December 22, 1993. The vote tally was 247 to 45.4 The interim constitution in Chapter 7 discusses an independent judiciary and constitutional court. The Constitutional Court has the power to overrule the Government on questions of constitutional law. South Africa has never had a court with authority to veto its executives.

  • 1. "A Mandate For Change; For South Africa, Pace Is Now Issue," The New York Times, March 20, 1992, Section A, page 1.
  • 2. "SOUTH AFRICA IN BRIEF; Chief Justice declares support for constitutional court," BBC Summary of World Broadcasts, April 13, 1992.
  • 3. "Draft constitution for South Africa unveiled," The Irish Times, July 27, 1993, page 1.
  • 4. "South Africa gets democratic constitution Parliamentarians of all races approve non-racial law while Afrikaners hold out for whites-only concessions," The Globe and Mail (Canada), December 23, 1993.
1994

Minimum Implementation

Judicial reform took place with the implementation of the 1993 interim constitution.

1995

Intermediate Implementation

President Nelson Mandela officially inaugurated South Africa's Constitutional Court in Johannesburg on February 14, 1995. Eleven judges to the court were sworn in the ceremony. The first task of the court was to decide on the death penalty.5 The constitutional court made its first ruling on the death penalty on June 6, 1995, abolishing the death penalty.6

As constitutional debate continued in the Constituent Assembly. The “ANC's constitutional policy conference at Kempton Park has resolved to keep the present structure of the courts in the final constitution. However, the conference proposed that all courts should be empowered to deal with constitutional matters."7

  • 5. "Mandela inaugurates South Africa's new constitutional court," Deutsche Presse-Agentur, February 14, 1995.
  • 6. "SOUTH AFRICA; Constitutional Court abolishes death penalty," BBC Summary of World Broadcasts, June 7, 1995.
  • 7. Source: "SOUTH AFRICA; ANC wants present structure of courts retained in constitution," BBC Summary of World Broadcasts, April 4, 1995.
1996

Full Implementation

The National Assembly adopted the final constitution on May 8, 1996. There were 421 votes in favor. The two members of the African Christian Democratic Party voted against the constitution.8 The judicial reforms laid out in the interim constitution of 1993 were incorporated in the constitution of 1996. Political parties, including the National Party (NP), challenged some of the provisions of the constitution in the Constitutional Court.9The Constitutional Court approved the final constitution on December 4, 1996.10

Judicial reform concluded with the adoption of the final constitution in 1996.

  • 8. "SOUTH AFRICA; South African Constitutional Assembly adopts new constitution," BBC Summary of World Broadcasts, May 8, 1996.
  • 9. "SOUTH AFRICA; National Party to challenge aspects of new constitution in court," BBC Summary of World Broadcasts, May 21, 1996.
  • 10. "South Africa; South Africa To Adopt New Constitution Next Week," Africa News, December 5, 1996.
1997

Full Implementation

No further developments observed.

1998

Full Implementation

No further developments observed.

1999

Full Implementation

No further developments observed.

2000

Full Implementation

No further developments observed.

2001

Full Implementation

No further developments observed.

2002

Full Implementation

No further developments observed.