The Constitution says the courts are independent. This means that the national executive and parliament cannot interfere in what the courts do. Everyone, including the government, must follow the decisions of the courts. The courts are:

• The Constitutional Court
• The supreme court of appeal
• The high courts
• Magistrate’s courts
• Other courts set up by acts of parliament, for example, the labour court, land claims court, small claims court

THE CONSTITUTIONAL COURT

The Constitutional Court is made up of a chief justice, deputy chief justice and nine other judges. The judges can only be judges in this court for up to 12 years. The Constitutional Court is the highest court to hear cases about the Constitution, and all other courts must follow its decisions. For example, the Constitutional Court says the death penalty is not allowed because it goes against people’s right to life, so no other court in South Africa can sentence anyone to death.

WHAT CASES CAN GO TO THIS COURT?

There are certain cases that only the Constitutional Court can make decisions about. Some of these cases are:

• Disputes over constitutional matters between government bodies and between different levels of government, for example, between a national and a provincial body.
• Whether laws passed (or about to be passed) by parliament or provincial governments go against the Constitution.
• If any conduct of the president goes against the Constitution.

HEARING CASES ABOUT THE CONSTITUTION

Any court can hear a case about the Constitution, including cases about abuses of rights. Courts can do the following:

• Remove a law which is unconstitutional
• Stop any conduct which is unconstitutional
• Give the body which made the law time to change the law

The Supreme Court of Appeal and the High Courts can make an order about how unconstitutional a law is. But they can only provide ‘temporary relief’ until the case goes to the Constitutional Court. Only the Constitutional Court can confirm that it is unconstitutional and therefore invalid.

WHO CAN TAKE A CASE TO THE CONSTITUTIONAL COURT?

Anyone can take a case directly to the Constitutional Court but it is difficult for a person who is not a lawyer to do this because of the legal questions involved. It would, therefore, be better to use a lawyer to take a case to Court.

TAKING A CASE TO THE CONSTITUTIONAL COURT

Anyone who wants to bring a case to the Constitutional Court must usually start in a High Court. In certain cases, the state will provide legal aid. A High Court will hear the case, and it has the power to make a decision. If the person who has brought the case is unhappy with the decision, they can usually appeal against a decision of the High Court. The appeal will be heard in the Constitutional Court. The Constitutional Court has to decide on the meaning of the Constitution in relation to a dispute. It has to interpret the relevant section(s) in the Constitution and see how it applies to the case.

The Constitution says that at least 8 judges must hear any case that goes to the Constitutional Court. Decisions of the Court are reached by a majority vote of the judges hearing a case.

Sessions of the Constitutional Court are open to the public and press. (See examples of Constitutional Court cases)

EXAMPLES

1. A provincial law (ordinance) says the province must only employ female teachers. All male teachers must be dismissed. A male teacher takes his case to the High Court. The High Court cannot remove this law. But the judges of the High Court can say that they think the law goes against the Constitution. They can decide that the teacher cannot be fired until the Constitutional Court has decided whether the law is constitutional or not.

The male teacher, another male teacher, or the Provincial Department of Education can ask the Constitutional Court to decide whether the law goes against the Constitution or not.

2. Mr Soobramoney was a diabetic who suffered from heart disease and kidney failure. He applied to a state hospital for special treatment involving the use of a very expensive machine. Because of the shortage of machines and staff, the hospital only admitted patients who could be cured or those who needed a kidney transplant. Mr Soobramoney did not fit either of these two categories. He was told that he did not qualify for the treatment.

He applied to the Kwa-Zulu-NatalHigh Court claiming that he had a right to receive treatment from the hospital because:

• Section 27 of the Bill of Rights says no one can be refused emergency medical treatment
• Section 11 says he has a right to life

The High Court turned down his application. Mr Soobramoney appealed to the Constitutional Court. The Court said his case was not an emergency that would allow him to receive emergency medical treatment. It also said that even though Mr Soobramoney had the right to have access to health care, the state only had to provide what it could afford. In this case, the state could not afford to give him the treatment. The Court turned down the appeal.

THE SUPREME COURT OF APPEAL

The Supreme Court of Appeal has a Chief Justice, a Deputy Chief Justice and other judges. This court is the highest court of appeal in all cases, except cases about the Constitution. It decides on appeals from lower courts, and decisions of this court must be followed by all lower courts.

HIGH COURTS

Each province has a High Court which is headed by a judge president and a deputy- justice president. Some provinces may also have ‘branches’ called local divisions.

If a person is unhappy about a decision of a High Court, they can appeal to:

• The Constitutional Court, if it is a constitutional matter
• The Supreme Court of Appeal in any other matter (See: Trials, appeals and reviews)

MAGISTRATE’S COURTS

Each area in the country has its own magistrate’s court. These courts deal with less serious criminal and civil courts. If a person is unhappy with the decision of a magistrate, they can appeal to a High Court of that province.

HOW JUDGES ARE CHOSEN

The Judicial Services Commission interviews judges and recommends a shortlist of four for each vacant position to the president, who makes the final decision. (See: Structure of the Courts)