What does the Court do with the litigant’s application?

The litigant files an application

Litigants apply to the Court for their matter to be heard by filing their applications with the registrar at the general office. A copy is given to each of the 11 Judges, who directly apply themselves to, and engage with, the issues in the application.

All Justices must weigh in

Each of these applications are considered by all the judges of the Constitutional Court, unlike in other senior appeal courts which often delegate this decision-making responsibility to a few judges. The Constitution stipulates that a quorum of the Constitutional Court is eight, so no case can be turned away from the Court without at least eight judges having considered the matter.

Each chamber makes a recommendation

The clerks in each set of chambers share a copy of the application amongst themselves. Each chamber has its own procedures when it comes to reviewing the application. In some chambers, a memo is prepared by one of the law clerks for their judge who then debates the matter with the law clerk. After the internal chamber debate, the Justice will come to a decision and a final memo will be prepared which states whether that chamber thinks the matter should be set down or not.

Justices debate at conference

The justices meet at conference, usually weekly, to debate the new applications. If the majority of the 11 justices vote to grant leave to appeal, meaning to hear the litigant’s matter after the lower courts have heard that matter, then the Constitutional Court will set that matter down for hearing. If the Court is unsure whether permission should be granted, the case will be set down on a certain date so that argument from the parties can be heard as to why the Court should grant permission for the matter to be heard again after the lower court’s judgment on that matter. The justices can also decide not to grant leave to appeal meaning that appeal is effectively dismissed by the Court.

The matter is set down for hearing

Once the Court has decided to hear the matter, each of the opposing parties in the case 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 the proceedings or be admitted as an ‘amicus curiae’ (friend of the court). They too will make written submissions and sometimes give oral arguments if asked by the Chief Justice to do so.

The Court’s workload

The Court receives far more applications for access to the Court than it actually enrols for hearing. There has been a significant increase in the number of cases the Court deals with. For example, in 1995 the Constitutional Court handed down 14 judgments. In 2010 the number was 24.  In 2018, the Court handed down 56 judgments. Aside from judgments handed down there are many applications received, considered and dismissed by this Court – currently, about 120-130 per year.

A Court’s discretion

The Court has the discretion whether to hear a matter. The only exception to this is where legislation has already been declared invalid by a lower court and the Court is required to confirm that finding. An example is the judgment of the Constitutional Court that essentially legalised the private use of dagga in Minister of Justice and Constitutional Development and Others v Gareth Prince and others where the High Court had already declared the legislation prohibiting private use of dagga unconstitutional. The case then went to the Constitutional Court for confirmation. 

Read the landmark case.


Audio Visual

President Mandela gives his State of the Nation address in Parliament. Mandela ends his address with the words, “Let us all get down to work”.

“We must construct that people-centred society of freedom in such a manner that it guarantees the political and the human rights of all our citizens.”– President Mandela, extract from State of the Nation Address, 24 May 1994

President Nelson Mandela announces his cabinet. It includes members of the African National Congress, National Party and Inkatha Freedom Party.

“There was pride in serving in the first democratic government in South Africa, and then the additional pride of serving under the iconic leadership of Nelson Mandela … [He] represented the hopes of not just our country, but of oppressed, marginalised and the poor in the world.”– Jay Naidoo, then Minister of RDP housing
“We place our vision of a new constitutional order for South Africa on the table not as conquerors, prescribing to the conquered. We speak as fellow citizens to heal the wounds of the past with the intent of constructing a new order based on justice for all.”– President Nelson Mandela, 10 May 1994