The South African Appeal Court and Judicial Review

AuthorB. Beinart
Published date01 November 1958
DOIhttp://doi.org/10.1111/j.1468-2230.1958.tb00497.x
Date01 November 1958
THE
SOUTH AFRICAN APPEAL COURT
AND JUDICIAL REVIEW
IN
a previous article the present writer examined the radical trans-
formation brought about in the South African Senate as result
of the recent constitutional crisis.' The purpose of the present
paper is to study the effect of this
''
constitutional revolution
"
on
the composition and status of the South African appeal court and
on
its power of judicial review of legislative acts. The latter was
one of the main points of contention during the crisis. For
a
proper study of these matters the history of the appeal court since
Union in
1010
is considered relevant.
I.
EARLIER
HISTORY
The South Africa Act,
1909,
which created the
Union
brought
into being an Appellate Division consisting of
a
Chief Justice, two
ordinary Judges of Appeal and two additional Judges
of
Appeal.
The
two
additional judges were to be assigned from the lower
branches of the Supreme Court,
viz.,
the provincial and local
divisions2; they were not permanent members of the Appellate
Division, and when their attendance was not required in that
court,
were to continue to perform their duties
in
their respective
Divisions.$ All judges were
to
be appointed by the Governor-
General-in-Council.
In
practice and by convention this has always
meant appointment by the Cabinet
on
the recommendation of
the Minister of Justice, following the comparable British practice.
Security of tenure and of salary of judges was provided for after
the model of the Act of Settlement,
1700.'
The Appellate
Court
1
(1957) 20
M.L.R.
649466;.
a
Ori 'nal
a.
96
of the S.A. Act.
4
The
Governor-General-in-Council
is
defined
as
the Governor-Qcneral acting
with the advice of the Executive Council (S.A. Act,
a.
13).
The
Executive
Council consists of Ministers of State
(who
in
South
Africa are
all
members
of the Cabinet) and
any
other members chosen, summoned and
sworn
by
the Governor-Qeneral-all of whom hold
.office
at the Governor-General's
pleasure
(as.
12 and
14).
In
practice
only
Ministers
of
State
are
made
Executive Councillors, but
the
are
never dismissed,
nor
do
they retire from
the
Council. Accordingly, ex-kinisters
are
members of the Council, but by
convention they
are
never summoned and the
Governor-General-in-Councll
consists of the Governor-General acting
on
the advice of his Cabinet Ministera
of the day. See
May.
The
South
African
Comtilufion
(3rd ed.), p.
182;
Verloren van Themaat. Slaalareg. p.
258.
The system appears
to
be
a
pale
analogy of the distinction in the United Kingdom between
the
formal and
legal Privy Council
on
tho
one
hand
and the active and extra-legal Cabinet
on
tho other hand.
6
Under
a.
101
of
the S.A. Act judges
are
removable only on an address from
both Houses of Parliament praying for such removal
on
the pund of mis-
behaviour or incapacity.
s.
100
lays
down that their salaries shall be
a
Ibif
587
588
THE
MODERN
LAW
REVIEW
VOI"
21
would hear appeals
in
civil cases on matters of law as well as of
fact, but in criminal cases heard in
a
provincial or local division
appeals lay on questions of law only, or on some alleged irrcgu-
larity or illegality in the procccdings.6 In the hearing of an appeal
from
a
court consisting of two or more judges, the quorum of
judges prescribed for the Appellate Division was five and in an
appeal from a single judge, the quorum was three.
No
judge was
permitted to sit in an appeal from a judgment in a case in which
he had sat
in
the lower
"he new Appellate Division was to take the place of the
Judicial Committee of the Privy Council
vis4-vis
the provincial
and local Supreme Courts, and accordingly the South Africa Act
put an end
to
appeals as of right to the Privy Council from the
superior courts of the Union.* The Act, however, specifically saved
the appeal as of grace, that
is,
the right of
a
citizen to request the
King-in-Council for special leave to appeal
from
a judgment of the
Appellate Division.' At the same time the South African Parlia-
ment wns given express power to
limit
such appeals, provided
that
a
Bill
doing
so
must be reserved by the Governor-General for
the King's assent."
For the first forty years of Union, few serious changes were
made in relation to the Appellate Division.
In
1920
all judges of
the Appeal Court were made full-time judges of that court, and
henceforth the four judges, other than the Chief Justice, were to
be designated as Judges of Appeal.'l The quorum of five laid down
for appeals in cases from two or more judges caused some diffi-
culty, should one of the appeal judges
be
ill or unavoidably absent."
In
1927,
therefore,
a
Bill was introduced at the suggestion of the
judges of the Appeal Court to reduce the quorum
in
such cases to
preecribed by Parliament and shall not be diminished during their continuance
m
office.
May,
op.
cit.,
6
The position
as
regards criminal appeals was stnbiliscd by the Criminal
Procedure and Evidence Act,
31
of
1917,
6s.
369372.
For
a
fuller statement
of the position, see the
Report
of
the
Penal
and
Prison
Reform
Commission
(U.G.
47
of
1917),
pp.
84
el
seq.,
and Kennedy and Schlosbcrg,
The
IAW
and
Custom
of the
S.A.
Comtitution,.pp.
358359.
There was
also
at
that
time
no
appeal against the sentence lmposed by the lower court.
Original
8.
110
of
S.A.
Act.
In
the case of matters under
the Colonial
Courts
of Admiralty Act,
1890,
the appeal
as
of
right to the
Privy Council would still be possible after
an
appeal had been heard by the
Appellate Division (S.A. Act,
8.
106).
This
was
D
power conferred
on
the South African Parliament by the
United Kingdom Parliament
(S.A.
Act)
;
Kennedy
and
Schlosberg,
op.
cit.,
therefore assume wrongly that
on
the basis of
Nadan
V.
The
King
[19'26]
A.C.
491
the Union Parliament could not before the Statute
of
Westmiuster,
1931,
wstrict the right
to
ask
for special leave. See al?
May,
op.
cit,.
p.
219.
The power appeals and this might
have precluted complete abolition
of
such right of
appeal
before
1931.
11
Appellate Division Act,
12
of
1920.
la
Acting judges could be appointed under
8.
97
of the
S.A.
Act, but this often
involved delay.
No
judge has ever been removed
in
South Africa.
p.
247.
8
Kennedy and Schlosberg,
op.
cit.,
pp.
376-376.
9
S.A.
Act,
s.
106.
10
Ibid.
iven in
8.
10G
was, however, to
"limit

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT