The Constitution states that while the Constitutional Court (CC) is the highest court in Constitutional and associated matters, the Supreme Court of Appeal is the highest court of appeal except in constitutional matters. Because the Constitution also states that it is the CC – and not the SCA – who actually decides what is a constitutional matter, it means that the CC is now in effect the highest court in the country.
Academic and other commentators (I am thinking here especially of Carmel Ricard) have argued that there is some feelings of animosity or at least jealousy between the two courts. It might well be that this tension is now fading, but among some of the more traditional SCA judges there certainly still is a strong feeling that the CC judges should know their place in the larger legal firmament.
Last year, while the controversy about the Constitutional Amendments were raging, I was quite amused by arguments put forward at a seminar by SCA Justice Ian Farlam. He argued that the jurisdiction of the CC should not be extended to make it the final court of appeal in all cases. The justices on the CC, judge Farlam argued, were peculiarly situated to deal with typical “Public Law’ matters which required a policy based approach while judges of the SCA were specialised judges dealing with black letter law.
Judges of the CC did not have the skill or knowledge to deal with the broad range of issues that SCA judges had to deal with. It would therefore be unfair to the CC to extend its jurisdiction and to require CC judges to deal with matters they knew nothing about.
This argument, of course, revealed more about Judge Farlam and the SCA than about the CC. But I was reminded of this talk, when I read the CC judgment in Engelbrecht v Road Accident Fund and Another, handed down earlier this week. In this judgment, a unanimous court, per Kondile AJ, found that the SCA had erred when it had held that the victim of an unidentified driver had no common law claim. The CC quoted from a 1938 decision of the Appelate Division to demonstrate that the SCA had not understood its own common law jurisprudence – thus suggesting that the SCA judges were rather slow and uninformed.
I cannot say whether the CC is technically correct or not. The point is that whether it intended to or not, it sent a strong signal to the SCA that it was indeed now the apex court in
Given the fact that the CC can decide what is a Constitutional matter and what not and given the broad interpretation it has given in this regard, it seems to me that over time it will start acting more and more like a true apex court.
At the same time the SCA will become more of a gatekeeper court, dealing with normal appeals in which lawyers were not able to find the constitutional angel they would have needed to have a shot at the big guns.