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7 Court Rules andPractice Directives

Matthew ChaskalsonCheryl Loots

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7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7--1

7.2 Overview of the rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7--2

7.3 Analysis of particular rules . . . . . . . . . . . . . . . . . . . . . . . . . . 7--6(a) Submission by an amicus curiae . . . . . . . . . . . . . . . . . . . . . 7--6(b) Direct access in the interest of justice . . . . . . . . . . . . . . . . . . . 7--8(c) Appeals to the Constitutional Court . . . . . . . . . . . . . . . . . . 7--10(d) Documents lodged to canvass factual material . . . . . . . . . . . . . 7--13

7.4 Practice Directions of the Constitutional Court . . . . . . . . . . . . . . . 7--14(a) Practice Direction 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7--14(b) Practice Directive 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7--14

(i) Practice notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 7--14 (ii) Electronic copies of documents . . . . . . . . . . . . . . . . 7--14A(iii) Electronic notices and communications . . . . . . . . . . . . 7--14A

Appendix: Rules of the Constitutional Court . . . . . . . . . . . . . . . 7--14B

[REVISION SERVICE 5, 1999] 7--i

7.1 INTRODUCTION

The interim Constitution (IC)1 authorized the President of the Constitutional Court, inconsultation with the Chief Justice, to make rules regulating all matters relating to theproceedings of the Constitutional Court.2 Rules made in accordance with this provision werepromulgated on 6 January 1995.3

1REVISION SERVICE 5, 1999The jurisdictional scheme created by the final Constitution (FC)4 differed from that of theIC in many important respects. The FC extended the jurisdiction of the High Court to enquireinto the constitutionality of Acts of Parliament, conferred constitutional jurisdiction on theSupreme Court of Appeal (the erstwhile Appellate Division), and accordingly removed the ICreferral provisions from the body of the Constitution.5 These jurisdictional changes meantthat the IC rules were, in many cases, inappropriate for the procedures of the FC.6 Neverthe-less, the IC rules remained in force under the FC,7 and were replaced by new rules designedfor the FC only on 29 May 1998.8 In S v Pennington & another9 the Constitutional Courtlaid down certain principles which were to govern procedures in FC cases in the interregnumperiod pending the promulgation of rules designed for the FC. In so far as the existing IC ruleswere capable of application to FC procedures, the court stated that these rules should befollowed.10 However, where the procedures of the FC were incapable of being accommodatedby the IC rules the court indicated11 that it would create appropriate procedures under itsinherent jurisdiction to regulate its own process.12

1 Constitution of the Republic of South Africa, Act 200 of 1993. 2 IC s 100(1). 3 GN R5 Reg Gaz 5450 of 6 January 1995. 4 Constitution of the Republic of South Africa, Act 108 of 1996. 5 The differences between the jurisdictional provisions of the interim Constitution and those of the final

Constitution are discussed above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ ch 6. 6 See, for example, rules 22 and 23, which dealt respectively with the referral of issues from the provincial and

local divisions of the Supreme Court and from the Appellate Division in terms of IC s 102. As the FC had conferredfull constitutional jurisdiction on all of these courts, there was no longer any need for such referrals. Conversely,the conferral of constitutional jurisdiction on the Supreme Court of Appeal required rules that would make provisionfor appeals on constitutional issues from that court to the Constitutional Court. The IC rules did not do so.

7 FC item 16(1) of Schedule 6 (S v Pennington & another 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC)at para 14).

8 GN R757 Reg Gaz 6199 of 29 May 1998. The delay in promulgating the rules was caused by the absence ofany enabling legislation. IC s 100(1) was repealed by the FC. The FC itself contained no provision enabling themaking of rules. It was only on 3 December 1997 that such a provision was created by s 3 of the ConstitutionalCourt Complementary Act Amendment Act 79 of 1997 (inserting s 16 into the Constitutional Court ComplementaryAct 13 of 1995). See S v Pennington & another 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC) at para 4.

9 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC).10 At para 14.11 S v Pennington & another (supra) at paras 14 and 21--8; Parbhoo & others v Getz NO & another 1997 (4) SA

1095 (CC), 1997 (10) BCLR 1337 (CC) at para 4.12 The inherent jurisdiction of the court is conferred by FC s 173 and is discussed above, Loots & Marcus

‘Jurisdiction, Powers and Procedures of the Court’ § 6.7. This chapter must be read together with that section.

COURT RULES AND PRACTICE DIRECTIVES

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2 With the promulgation of the FC rules, matters have now come full circle. The FC providesthat cases which were pending at its commencement must ordinarily be disposed of as ifthe IC were still in force.1 Many of these IC cases have not yet been resolved. For their properresolution, rules are required which are designed for the jurisdictional arrangements ofthe IC. However, the FC rules which repealed the IC rules2 are designed to deal with thejurisdictional scheme of the FC and are, in many cases, inappropriate for IC cases.3 Nor dothe FC rules allow pending IC cases to be disposed of in terms of the IC rules.4 It seems,therefore, that pending IC cases will now have to be governed by the Pennington principles.Where those cases can be disposed of in terms of the FC rules, the FC rules should befollowed. Where, however, the FC rules are incapable of accommodating a matter (forexample a referral under the IC), the court should be approached to exercise its inherentjurisdiction to create an appropriate procedure for the matter.5 In such cases, the appropriateprocedure will ordinarily be that which was provided by the IC rules.

7.2 OVERVIEW OF THE RULES

This section is designed to give the reader a quick overview of the rules. The rules arereproduced in full in an appendix to this chapter.

The rules commence with a definitions section6 and certain general provisions.7 Ofparticular importance to practitioners are rule 1(3) and (4). The former imposes therequirement that any document lodged with the court must be lodged with 25 copies. Thelatter provides for the giving of notices, directions and ‘other communications’ byregistered post, fax8 ‘or other electronic copy’. Both of these subrules must be read togetherwith Practice Directive 2 of the Constitutional Court,9 which is discussed below.10 Rules 2--4deal with the sessions of the court,11 and the office hours12 and duties13 of the registrar. Theregistrar is obliged to publish declarations of unconstitutionality of a law in the GovernmentGazette or Provincial Gazette concerned.14 Where a party is unrepresented, the registrar is

1 FC Schedule 6 item 17. See above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ § 6.7. 2 See FC rule 34. 3 For example, they make no provision for referrals from the provincial and local divisions of the High

Court or the Supreme Court of Appeal of constitutional issues which are beyond the jurisdiction of these courtsunder the IC.

4 The only transitional provisions in the FC rules are to be found in rules 33 and 34 and both of these assumethat all cases will be governed by the FC rules.

5 This would require an application in terms of FC rule 10. 6 Rule 1(1). 7 Rule 1(2)--(6). 8 The fax number of the Registrar of the Court is (011) 403-6524. 9 1999 (2) SA 666 (CC), 1999 (3) BCLR 260 (CC), 1999 (1) SACR 370 (CC) at para 5.10 At § 7.4(b).11 Rule 2. The rule provides that matters may be heard out of term only if the President so directs. An applicant

wishing to set down a matter out of term must accordingly apply to the President for leave to do so. See Ministerof Justice v Ntuli 1997 (3) SA 772 (CC), 1997 (6) BCLR 677 (CC) at para 6.

12 Rule 3. These are from 8:30 to 13:00 and from 14:00 to 15:30 on court days. It would appear that documentsmay be issued and filed at any time during these hours. Cf rule 3 of the Uniform Rules of Court.

13 Rule 4. 14 Rule 4(8).

CONSTITUTIONAL LAW OF SOUTH AFRICA

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required to refer that party to the nearest office or officer of the Human Rights Commission,the Legal Aid Board, or any law clinic which may be willing to assist the party. If theunrepresented party is unable to obtain assistance, the registrar must render assistance inpreparing the papers required by the rules or, if directed to do so by the President, request anadvocate or attorney to assist the party.1

3 All processes of the court are to be served by a sheriff of the Supreme Court, unless thecourt directs otherwise.2 The provisions of rule 4 of the Uniform Rules of the provincial andlocal divisions of the Supreme Court3 are made applicable to the service of any process ofthe court.4 Where there is a dispute over the constitutionality of any law or executive act orconduct and the responsible executive authority is not a party to the proceedings, he or shemust be given notice of the proceedings by the party raising the constitutional dispute.5

Representation of parties is limited by the rules. Only a person entitled to appear in theSupreme Court of South Africa may appear on behalf of any party at the proceedings of the court,unless the court or the President directs otherwise.6 A power of attorney or authorization toact is not required to be filed by any legal representative initiating or opposing proceedings,but can be demanded by any party who disputes the authority of a practitioner to act on behalfof another party.7

The rules make provision for amicus curiae submissions by any person interested in anappeal or a reference or any other matter before the court.8 The circumstances in which suchsubmissions may be made and the way in which they must be made are prescribed by therule, which is discussed in detail below.9

The procedure to be used in any matter in which an application is necessary for anypurpose, including the obtaining of directions from the court, is notice of motion supportedby an affidavit as to the facts upon which the applicant relies for relief.10 The procedureprescribed is similar to Supreme Court application procedure. Once all the affidavits havebeen filed the application is placed before the President of the Constitutional Court fordirections as to how it should be dealt with and, in particular, as to whether it shall be setdown for hearing or whether it shall be dealt with on the basis of written argument orsummarily on the basis of the information contained in the affidavits.11 Provision is madefor urgent applications in circumstances which justify a departure from the ordinary proce-dures.12 A specific rule relating to oral argument provides that oral argument shall not beallowed if directions to that effect are given by the court.13

1 Rule 4(12). 2 Rule 5. 3 GN R48 GG Extraordinary 999 of 12 January 1965 (Reg Gaz 437), as amended. 4 Rule 6(1). 5 Rule 6(2). The rule governs only proceedings in the Constitutional Court and not those in the High Court or

Supreme Court of Appeal. Nevertheless, the Constitutional Court has indicated that in cases concerning theconstitutional validity of a law or executive act, the relevant executive authority should be given the opportunity tojoin in the proceedings at the earliest possible stage. In particular, the executive authority should be allowed tointervene at a time when it will still be able to lead any evidence that may be relevant to the constitutionality of thelaw or act. See Jooste v Score Supermarket Trading (Pty) Ltd 1999 (2) SA 1 (CC), 1999 (2) BCLR 139 (CC) atparas 8--9 and Beinash v Ernst and Young 1999 (2) SA 116 (CC), 1999 (2) BCLR 125 (CC) at paras 27--8.

6 Rule 7(1). 7 Rule 8(1). 8 Rule 9. 9 See below, § 7.3(a).10 Rule 10. 11 Rule 10(4).12 Rule 11. 13 Rule 12(2).



The procedures to be adopted in certain matters over which the Constitutional Court hasexclusive jurisdiction are dealt with in separate rules.1 These are the referral of a Bill by thePresident or a provincial Premier,2 an application by members of the National Assembly ora provincial legislature for abstract review of an Act of Parliament or an Act of the provinciallegislature,3 the confirmation of an order of constitutional invalidity contemplated by s 172of the Constitution,4 and the certification of a provincial constitution.5 Note that there remaincertain matters falling within the exclusive jurisdiction of the Constitutional Court which arenot dealt with specifically by the rules.6

4 In respect of matters which do not fall within the exclusive jurisdiction of the Constitu-tional Court, the rules, following FC s 167(6)(a), allow direct access to the court only withleave of the court, which may be granted in the interests of justice.7 The rules also regulatedirect access to the Constitutional Court on appeal8 and appeals to the Constitutional Courtfrom the Supreme Court of Appeal.9 The procedures governing appeals are considered inmore detail below.10

The last part of the rules contains miscellaneous provisions dealing with the use of thecourt library,11 translations,12 the placing of models, diagrams and exhibits in the custody ofthe registrar,13 the withdrawal of cases,14 the formatting of documents,15 and condonationfor non-compliance with any of the rules.16 There is an important rule in this section whichallows any party to proceedings before the court or any amicus curiae to lodge documentscanvassing factual material which is relevant to the determination of the issues before thecourt and which does not appear on the record, provided that such facts are common causeor otherwise incontrovertible or are of an official, scientific, technical or statistical nature,capable of easy verification.17

1 See also rule 10(1)(a), which provides that proceedings in any constitutional dispute between organs of statein the national or provincial spheres should be brought by way of ordinary application.

2 Rule 13. 3 Rule 14. 4 Rule 15. The rule contemplates orders of invalidity of Acts of Parliament, provincial Acts, or conduct of

the President which were made by the High Court or the Supreme Court of Appeal. Note that the rule gives anyparty to the proceedings in which the order of invalidity was made the right to appeal (subrule (2)) or to apply(subrule (4)) directly to the Constitutional Court for the setting aside or confirmation of the order of invalidity. Inparticular, a party is not obliged to appeal to the Supreme Court of Appeal against an order of invalidity made bythe High Court before he or she is entitled to a hearing in the Constitutional Court.

5 Rule 16. 6 These are the constitutionality of amendments to the Constitution and matters relating to the failure of the

President or Parliament to perform a constitutional obligation. It is submitted that proceedings in such cases shouldordinarily be initiated in the High Court in proceedings in which a referral of the relevant issue to the ConstitutionalCourt is sought. See further above, Loots & Marcus ‘Jurisdiction, Powers and Procedures of the Court’ § 6.7(b)(i).

7 Rule 17. This rule is discussed below, § 7.3(b). 8 Rule 18. 9 Rule 20. 10 See below, § 7.3(c).11 Rule 23. 12 Rule 24.13 Rule 25. 14 Rule 26.15 Rule 27. Note that any document longer than five pages must contain a table of contents and a table of

authorities.16 Rule 31. A party seeking condonation will ordinarily have to satisfy the Constitutional Court that it has

reasonable prospects of success on the merits: President of the RSA v SARFU & others 1999 (2) SA 14 (CC), 1999(2) BCLR 175 (CC) at para 55.

17 Rule 30(1). This rule is analysed below, § 7.3(d). See further below, ‘Evidence’ § 26.1(c).



5 The Constitutional Court rules incorporate by reference certain of the Uniform Rules ofthe provincial and local divisions of the Supreme Court1 and certain sections of the SupremeCourt Act.2 The Uniform Rules incorporated3 relate to the following matters: joinder ofparties on application and other matters related to application procedure;4 amendments topleadings and documents;5 discovery, inspection and discovery of documents;6 procuringevidence for trial by way of a hearing before a commission;7 variation and rescission oforders;8 sworn translators;9 interpretation of evidence;10 filing, preparation and inspectionof documents;11 authentication of documents executed outside the Republic for use withinthe Republic;12 destruction of documents;13 and enrollment of commissioners of the court.14

A procedure which appears to have been omitted is intervention of parties as provided forby Uniform Rule 12.15 The sections of the Supreme Court Act16 which are to apply toproceedings of and before the Constitutional Court17 are those concerning the followingmatters: the reference of particular matters for investigation by a referee;18 the powers ofcourt on hearing of appeals;19 examination by interrogatories of persons whose evidence isrequired in civil cases;20 and the manner of dealing with commissions rogatoire, letters ofrequest and documents for service originating from foreign countries.21

Costs orders of the Constitutional Court are to be executed in the magistrates’ courts.22

Where a costs order has not been complied with the party in whose favour it was made mustfile with the registrar an affidavit setting out the details of the costs order and stating that theorder has not been complied with or has not been complied with in full, stating the amountoutstanding, and request the registrar to furnish a certified copy of the costs order. The

1 GN R48 GG Extraordinary 999 of 12 January 1965 (Reg Gaz 437), as amended. 2 Act 59 of 1959. 3 Incorporated by Constitutional Court rule 28. 4 Uniform Rules 6(7)--(15). Uniform Rule 6(7) incorporates Uniform Rule 10, which describes the circum-

stances under which parties may join or be joined. Uniform Rules 6(8)--(15) deal with miscellaneous matters relevantto application procedure.

5 Uniform Rule 28. 6 Uniform Rule 35(13), which provides that the discovery rules contained in Uniform Rule 35 will apply to

applications in so far as the court may direct. 7 Uniform Rule 38(3)--(8). 8 Uniform Rule 42. 9 Uniform Rule 59.10 Rule 61.11 Rule 62.12 Uniform Rule 63.13 Uniform Rule 64.14 Uniform Rule 65.15 See the discussion of amicus curiae briefs below, § 7.3(a), which indicates that an amicus curiae does not

intervene in the traditional sense of becoming a party to the matter.16 Act 59 of 1959.17 Made applicable by Constitutional Court rule 29.18 Section 19bis.19 Section 22.20 Section 32.21 Section 33.22 Rule 32.



certified copy of the costs order may be filed by the person in whose favour the order wasmade in the civil court of the district in which he or she resides, carries on business, or isemployed1 and such order shall be executed according to the provisions of the Magistrates’Courts Act2 and the magistrates’ courts rules,3 provided that no magistrate’s court shall beentitled to grant an order for the committal of a judgment debtor.4

7.3 ANALYSIS OF PARTICULAR RULES

6This section does not purport to present a comprehensive analysis of all the rules, but simplyfocuses on those rules in respect of which comment is warranted by the complexity of therule or the fact that there is relevant comparative law or case law.

(a) Submission by an amicus curiae

The institution of the amicus curiae is derived from English law, but has undergonesignificant change in American law.5 The Constitutional Court rule6 which allows a personinterested in an appeal or a reference or any other matter before the court to make submissionsto the court seems to be modelled on the American concept of the amicus curiae.7 Originallyin English law the amicus was a ‘bystander who, without any direct interest in the litigation,intervened on his own initiative to make a suggestion to the court on matters of fact and lawwithin his own knowledge’.8 This institution has developed in American law to allow a partyinterested in the outcome of the matter to present submissions to the court in the hope ofinfluencing the court’s decision.9 The amicus may offer legal argument not raised by eitherof the parties or present factual material to the court.10 Usually organizations representingcertain interest groups submit amicus briefs. The purpose of allowing this kind of publicinterest participation is to enable those who are affected by the exercise of judicial law-making authority to attempt to influence the exercise of that authority.11

The Constitutional Court rule which allows submissions by an amicus curiae limitsthe circumstances under which such submissions may be made and strictly prescribes the

1 This is contrary to the usual rule that execution takes place in the area of the court in which the judgmentdebtor resides, carries on business, or is employed.

2 Act 32 of 1944, as amended. 3 GN R1108 Reg Gaz 980 of 21 June 1968, as amended. 4 The proviso presumably applies specifically to committal for failure to pay a Constitutional Court costs order. 5 See Samuel Krislov ‘The Amicus Curiae Brief: From Friendship to Advocacy’ (1963) 72 Yale LJ 694. 6 Rule 9. Rule 16 of the Supreme Court of Appeals Rules (GN R1523 of 27 November 1998) also makes

provision for an amicus curiae. See further Erasmus Superior Court Practice (11th revision, 1999) at C1-17--C1-20. 7 The American amicus curiae does not become a party to the proceedings, but merely makes submissions to

the court. In Canada the term ‘intervention’ is used and refers both to intervenors who become parties and intervenorswho merely make submissions: Christina Murray ‘Litigating in the Public Interest: Intervention and the AmicusCuriae’ (1994) 10 SAJHR 240 at 256. One Canadian writer draws a distinction between ‘party intervenors, publicinterest intervenors and amici curiae’: see Philip L Bryden ‘Public Interest Intervention in the Courts’ (1987) 66Canadian Bar Review 490 at 499.

8 Murray op cit 241, citing Ernest Angell ‘The Amicus Curiae: American Development of English Institutions(1967) 16 ICLQ 1017.

9 Murray op cit 244.10 Murray op cit 250. With regard to the presentation of factual material, see rule 34.11 Bryden op cit 526.



procedure for making admissions. This is in line with the rules of the American courts.1 Anamicus requires either the consent of the parties or leave of the court to make submissions.2

Where submissions are made by consent, such consent must be in writing and must describethe terms and conditions, rights and privileges,3 and the time agreed upon4 for the lodgingof written argument. The time limits within which the consent must be given are strictlylimited.5 The terms and conditions and rights and privileges agreed upon may be amendedby directions issued by the President of the Constitutional Court.6

7 Where written consent of the parties has not been secured, a party interested in makingsubmissions may apply to the President to be admitted as an amicus curiae, and the Presidentmay grant such application upon such terms and conditions and with such rights andprivileges as he or she may determine.7 The application must be made within the time limitsspecified by the rule.8 The application must briefly describe the interest of the amicus curiaein the proceedings; briefly identify the position to be adopted by the amicus curiae in theproceedings; and clearly, succinctly and without unnecessary elaboration set out the submis-sions to be advanced, their relevance to the proceedings, and reasons for believing that thesubmissions will be useful to the court and different from those of the other parties.9 It isaccordingly clear that the President has a wide discretion to grant or refuse leave to file amicuscuriae briefs.

An amicus curiae who has been admitted has the right to lodge written argument,10 butnot to present oral argument.11 The rules strictly prescribe the form that the written argumentmust take: it must not repeat any matter set forth in the argument of the other parties; and itmust raise new contentions which may be useful to the court.12 Unless otherwise ordered bythe court, the amicus curiae shall be limited to the record on appeal or reference and the factsfound proved in other proceedings and may not add thereto.13

An order of court dealing with costs may make provision for the payment of costs incurredby or as a result of the intervention of the amicus curiae.14 This provision raises the spectreof the amicus curiae being ordered to pay portion of the costs, but may also be interpretedas empowering the court to make a costs order in favour of an amicus curiae. It has been

1 See Murray op cit 247; Krislov op cit 713. 2 This is also in line with the American practice, for in Canada the permission of the court is always required:

Murray op cit 255. 3 Rule 9(1). 4 Rule 9(2). 5 In terms of rule 9(1) the limits are the same as those prescribed for applications for leave to file a submission

in rule 9(5). Where these time limits are not met the court may refuse to admit the amicus curiae. See Fose v Ministerof Safety and Security 1997 (3) SA 786 (CC), 1997 (7) BCLR 851 (CC) at paras 8--10. An advantage of having stricttime limits is that where more than one party applies to make a submission the court will be able to compare theapplications and make an order which keeps the proceedings manageable, for instance by ordering that applicantscombine to make submissions. See Bryden op cit 523--4.

6 Rule 9(3). 7 The order must specify the date for the lodging of written argument by the amicus curiae and any other relevant

matter: rule 9(9). 8 See rule 9(5). 9 Rule 9(6). It is not clear whether the term ‘other parties’ refers only to the original parties to the action or also

refers to other parties who are submitting amicus curiae briefs.10 Rule 9(7). 11 Rule 9(8).12 Rule 9(7). 13 Rule 9(8).14 Rule 9(10).



suggested by a Canadian writer that, generally, public interest intervenors should be respons-ible for their own costs regardless of the outcome of the litigation, but, barring unusualcircumstances, they should not be responsible for the costs of any of the other participantsin the litigation.1

(b) Direct access in the interest of justice

8FC s 167(6) states that national legislation or the rules must allow a person, when it is in theinterests of justice, and with leave of the Constitutional Court, to bring a matter directly tothe court. Rule 17 does this. An application under the rule must set out the grounds on whichit is alleged that the interests of justice require the granting of direct access, the nature of therelief sought, and the grounds on which it is claimed.2 The application must also state whetherthe court can dispose of the matter without hearing oral evidence and, if not, how evidenceshould be adduced and disputes of fact resolved.3 Parties opposing the application are given10 days in which to file a notice of opposition,4 and thereafter the matter is dealt with interms of the directions of the President.5 Applications may be dismissed summarily withouthearing oral or written argument, but direct access may not be granted over the oppositionof any party unless that party has been given the opportunity to make written submissions tothe court motivating its opposition to the application for direct access.6

Some guidance as to how the Constitutional Court will approach applications underrule 17 can be found in its treatment of the equivalent rule under the interim Constitution.7

IC rule 17 allowed direct access in exceptional circumstances only, which ordinarily wereconfined to cases of such urgency or public importance that the delay necessitated by the useof ordinary procedures would prejudice the public interest or the interests of justice and goodgovernment.8 Many of the decisions under IC rule 17 concerned matters where the only issuewas one within the exclusive jurisdiction of the Constitutional Court. The ‘ordinary proce-dure’ in such cases was to apply to the Supreme Court for a referral of the matter in terms ofIC s 102(1).

‘This follows from the language of section 102(1) and (2) which necessarily implies thatsection 102(1) is applicable to cases in which the only issue is the one to be referred to the Constitu-tional Court, and section 102(17), which makes provision for appeals to the Constitutional Courtagainst a decision of the Supreme Court refusing a referral where ‘‘the only issue raised is aconstitutional issue within the exclusive jurisdiction of the Constitutional Court’’.’9

1 Bryden ‘Public Interest Intervention in the Courts’ at 523.2 Obviously, the main application must have reasonable prospects of success if the application for direct access

is to succeed: Transvaalse Landbou Unie v Minister of Land Affairs & others 1997 (2) SA 621 (CC), 1996 (12)BCLR 1573 (CC) at paras 45 and 46.

3 Rule 17(2). 4 Rule 17(3).5 Rule 17(4). 6 Rule 17(5).7 See Bruce & another v Fleecytex Johannesburg CC & others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415

(CC) at para 7 and Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC), 1998 (12) BCLR1449 (CC) at para 8.

8 The applicant for direct access bore the onus of establishing urgency. See Transvaalse Landbou Unie v Ministerof Land Affairs & others 1997 (2) SA 621 (CC), 1996 (12) BCLR 1573 (CC) at paras 18--23.

9 Per Chaskalson P in Brink v Kitshoff NO 1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at para 6. See alsoJT Publishing (Pty) Ltd & another v Minister of Safety and Security & others 1997 (3) SA 514 (CC), 1996 (12)BCLR 1599 (CC) at para 8 and Transvaalse Landbou Unie v Minister of Land Affairs & others (supra) at para 16.



9 Whilst repeatedly emphasizing that IC rule 17(1) should not be used to legitimate anincompetent referral, the Constitutional Court was, at first, remarkably accommodating ofparties who invoked the rule after finding themselves before the court without havingfollowed the correct procedures in terms of IC ss 102 and 103.1 The patience of the court,however, ultimately wore thin. In Luitingh v Minister of Defence2 the court refused to allowan application in terms of IC rule 17(1) to save a bad referral, and in Brink v Kitshoff NO3

Chaskalson P issued the following warning:‘It should, however, be clearly understood that uncertainty as to the procedures to be followed orthe reach of the Constitution can no longer be regarded as excuses for incorrect referrals, and thatthis court has a discretion, even where exceptional circumstances have been established, to refuseto grant permission for a matter to be brought directly to it. It will not hesitate to exercise thatdiscretion when it considers it appropriate to do so.’

Following Brink v Kitshoff the court rejected numerous applications for direct access.4 It nowseems clear that direct access will generally not be granted to remedy procedural errors madeby litigants, but will be reserved for extreme cases where the urgency and public importanceof the matter preclude a resort to ordinary procedures.5 In Transvaalse Landbou Unie vMinister of Land Affairs & others6 the Constitutional Court emphasized this point by referringto Executive Council, Western Cape Legislature, & others v President of the Republic of SouthAfrica & others7 as the sort of case for which direct access was appropriate:

‘The facts there were exceptional. The dispute concerned the validity of presidential proclamationswhich provided the framework for local government elections which were due to be held shortlyin most parts of the country. The court, in granting direct access, considered the possibility thatinvalidation of the proclamations could jeopardize the whole electoral process. In the event it didconclude that the proclamations were invalid and as a result Parliament had to be convened as amatter of urgency to address the problem and provide a legal framework for the elections.’

The Constitutional Court’s restrictive approach to direct access is consistent with itsgeneral approach to the incremental development of constitutional law.8 Direct access is

1 See, for example, S v Zuma & others 1995 (2) SA 642 (CC), 1995 (4) BCLR 401 (CC) at para 11; ExecutiveCouncil, Western Cape Legislature, & others v President of the Republic of South Africa & others 1995 (4) SA 877(CC), 1995 (10) BCLR 1289 (CC) at paras 15--17; Ferreira v Levin NO & others 1996 (1) SA 984 (CC), 1996 (1)BCLR 1 (CC) at para 10; S v Mbatha 1996 (2) SA 464 (CC), 1996 (3) BCLR 293 (CC), 1996 (1) SACR 371 (CC)at para 29; Besserglik v Minister of Trade, Industry and Tourism & others 1996 (4) SA 331 (CC), 1996 (6) BCLR745 (CC) at paras 6--7; Brink v Kitshoff NO1996 (4) SA 197 (CC), 1996 (6) BCLR 752 (CC) at paras 17--18.

2 1996 (2) SA 909 (CC), 1996 (4) BCLR 581 (CC).3 Supra at para 18.4 See, for example, Transvaalse Landbou Unie v Minister of Land Affairs & others 1997 (2) SA 621 (CC), 1996

(12) BCLR 1573 (CC); Motsepe v Commissioner for Inland Revenue 1997 (2) SA 898 (CC), 1997 (6) BCLR 692(CC); Hekpoort Environmental Preservation Society & another v Minister of Land Affairs & another 1998 (1) SA349 (CC), 1997 (11) BCLR 1537 (CC); Bruce & another v Fleecytex Johannesburg CC & others 1998 (2) SA 1143(CC), 1998 (4) BCLR 415 (CC); Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC),1998 (12) BCLR 1449 (CC).

5 This rule is subject to exceptions in cases only where the public interest in a decision by the ConstitutionalCourt is overwhelming. See, for example, S v Dlamini; S v Schietekat; S v Joubert; S v Dladla 1999 (4) SA 623(CC), 1999 (7) BCLR 771 (CC), 1999 (2) SACR 51 (CC) at paras 34--5.

6 1997 (2) SA 621 (CC), 1996 (12) BCLR 1573 (CC) at para 20.7 1995 (4) SA 877 (CC), 1995 (10) BCLR 1289 (CC).8 See above, § 6.4.



ordinarily to be avoided because it requires the court to sit as court of first and last instance.It thereby deprives the court of the benefit of other judges’ consideration of the issues anddeprives the parties of ‘an opportunity of challenging the reasoning on which the firstjudgment [in the case] is based, and of reconsidering and refining arguments previouslyraised in the light of such judgment’.1 It also increases the risk that the court may prematurelygive a final decision on a constitutional issue which might, in the ordinary course of events,have turned out to be an academic issue. Finally, direct access threatens to involve the courtin disputes of fact in respect of which oral evidence may be necessary. This is clearlyundesirable for a court of final appeal.2

(c) Appeals to the Constitutional Court

10Under the final Constitution the Supreme Court of Appeal has the same constitutionaljurisdiction as the provincial and local divisions of the High Court.3 Ordinarily appeals froma High Court decision on a constitutional matter will be heard by a full court of the relevantdivision of the High Court or by the Supreme Court of Appeal.4 They will not proceed directlyto the Constitutional Court. An appellant seeking to appeal directly to the ConstitutionalCourt from a decision of the High Court5 must apply to the High Court to certify that it is inthe interests of justice for the appeal to proceed directly to the Constitutional Court.6 TheHigh Court cannot grant or refuse leave to appeal, but must certify whether the constitutionalmatter is one of substance, whether the evidence on record is sufficient to enable theConstitutional Court to dispose of the matter, whether the appeal has reasonable prospectsof success, and whether overall it is in the interests of justice for the appeal to be broughtdirectly to the Constitutional Court.7 The purpose of the certificate is to assist the Constitu-tional Court to decide whether or not to grant leave to appeal.8 Accordingly, where theprincipal judgment has traversed the issues covered by the certificate there may be no need

1 Bruce & another v Fleecytex Johannesburg CC & others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)at para 8. See also Christian Education South Africa v Minister of Education 1999 (2) SA 83 (CC), 1998 (12)BCLR 1449 (CC).

2 Bruce & another v Fleecytex Johannesburg CC & others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)at paras 7--9.

3 See FC ss 168, 169 and 172(2)(a).4 In terms of s 20(2)(a) of the Supreme Court Act 59 of 1959 an appeal from a decision of a single High Court

judge is ordinarily heard by a full court of the relevant division of the High Court. The appeal proceeds directly tothe Supreme Court of Appeal only where ‘the questions of law and of fact and the other considerations involved inthe appeal are of such a nature that the appeal requires the attention of [the Supreme Court of Appeal]’.

5 Rule 18. Note that the rule also covers cases where an applicant has had a petition for leave to appeal rejectedby the Supreme Court of Appeal.

6 The application must be made within 15 days of the order against which leave to appeal is sought (rule 18(2)).7 Rule 18(6). In Mistry v Interim National Medical and Dental Council of SA & others 1998 (4) SA 1127 (CC),

1998 (7) BCLR 880 (CC) at para 52 Chaskalson P stated that applications for a certificate should be dealt with inthe same manner as applications for leave to appeal to the Supreme Court of Appeal, and that a judge of the HighCourt is required to give a judgment on an application for a certificate. The procedure under rule 18 is also discussedin Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), 1997 (7) BCLR 851 (CC) at paras 2--3. These casesdealt with IC rule 18, but there are no material differences between that rule and the present rule 18.

8 See Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), 1997 (7) BCLR 851 (CC) at paras 2--3; Mistryv Interim National Medical and Dental Council of SA & others 1998 (4) SA 1127 (CC), 1998 (7) BCLR 880 (CC)at para 52.



for a detailed judgment to accompany the certificate. However, where the application for acertificate raises fresh issues in response to the principal judgment or challenges thereasoning of the principal judgment in a manner which calls for comment, a fuller judgmentmust accompany the certificate.1

11 Once the High Court has given its positive or negative certificate the appellant must applyto the Constitutional Court for leave to appeal,2 which then decides whether to grant or torefuse leave after considering the certificate.3 The test on an application for direct access onappeal is whether it is in the interests of justice for leave to be granted.4 Reasonable prospectsof success are necessary5 but not sufficient to satisfy this test.6 The saving of time and costsprovided by a direct appeal to the Constitutional Court7 must be weighed up against thegeneral need for constitutional law to develop incrementally,8 and the benefit to the Constitu-tional Court of a judgment by the Supreme Court of Appeal.9 The latter considerations meanthat the subject-matter of the appeal will affect the prospects of leave being granted. TheConstitutional Court has indicated that where a constitutional appeal concerns the develop-ment of the common law it will generally refuse to grant direct access on appeal, because todo so would be to forgo the benefit of the particular expertise and experience of the Supreme

1 Mistry v Interim National Medical and Dental Council of SA & others 1998 (4) SA 1127 (CC), 1998 (7) BCLR880 (CC) at para 53.

2 The contents of the application are prescribed by rule 18(6). The application must be made within 10 days ofthe date of the certificate and the respondent is given a further 10 days to reply to the application. See rule 18(7)and (9).

3 The decision is ordinarily taken by the full court in conference (rule 18(10)(a); see also MEC for DevelopmentPlanning and Local Government in Gauteng v Democratic Party & others 1998 (4) SA 1157 (CC), 1998 (7) BCLR885 (CC) at para 15). However, rule 18(10)(a) provides that outside of term time the President may grant but notrefuse leave.

4 FC s 167(6)(b). MEC for Development Planning and Local Government in Gauteng v Democratic Party &others 1998 (4) SA 1157 (CC), 1998 (7) BCLR 885 (CC).

5 S v Pennington & another 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC) at para 44. See also S v Mhlungu1995 (3) SA 867 (CC), 1995 (7) BCLR 793 (CC) at para 59, where Kentridge AJ discussed the interests of justicein the analogous context of referrals under the interim Constitution. See further above, Loots & Marcus ‘Jurisdiction,Powers and Procedures of the Court’ § 6.4(a)(i)(cc).

6 For example, it will never be in the interests of justice for leave to appeal to be granted in respect of an issuewhich has become moot, irrespective of the prospects of success on appeal. See Oranje Vrystaatse Vereniging vanStaatsondersteunde Skole en andere v Premier van die Provinsie Vrystaat en andere 1998 (3) SA 692 (CC), 1998(6) BCLR 653 (CC) at para 5.

7 MEC for Development Planning and Local Government in Gauteng v Democratic Party & others 1998 (4) SA1157 (CC), 1998 (7) BCLR 885 (CC) at paras 28--31. Of course, in cases where there is an urgent public need fora final decision of the Constitutional Court on an issue the interests of justice will usually permit direct access tothe court on appeal. See, for example, the three voting cases which the court decided on direct appeal shortly beforethe 1999 elections: New National Party of SA v Government of the RSA & others 1999 (3) SA 191 (CC), 1999 (5)BCLR 489 (CC); Democratic Party v Minister of Home Affairs & others 1999 (3) SA 254 (CC), 1999 (6) BCLR607 (CC) and August & another v Electoral Commission & others 1999 (3) SA 1 (CC), 1999 (4) BCLR 363 (CC).

8 Where it is possible that an appeal may be disposed of by the Supreme Court of Appeal on non-constitutionalgrounds the principle of incremental development of constitutional law militates against direct access to theConstitutional Court. The principle of incremental development is discussed above, Loots & Marcus ‘Jurisdiction,Powers and Procedures of the Court’ § 6.4(a).

9 MEC for Development Planning and Local Government in Gauteng v Democratic Party & others 1998 (4) SA1157 (CC), 1998 (7) BCLR 885 (CC) at para 32. See also Amod v Multilateral Motor Vehicle Accidents Fund 1998(4) SA 753 (CC), 1998 (10) BCLR 1207 (CC) and De Freitas & another v Society of Advocates of Natal (NatalLaw Society Intervening) 1998 (11) BCLR 1345 (CC).



Court of Appeal with respect to the common law.1 Similarly, where an appeal raisesconstitutional and non-constitutional issues the interests of justice will ordinarily demandthat it be considered by the Supreme Court of Appeal before the Constitutional Court.2 Thiswould ensure that the appeal reaches the Constitutional Court only when it is clear that itcannot be disposed of on non-constitutional grounds, and after the constitutional issue hasbeen the subject of a judgment of the Supreme Court of Appeal. Where, however, there areonly constitutional issues in an appeal, the situation may be different.

‘Relevant factors to be considered in such cases will, on the one hand, be the importance ofthe constitutional issues, the saving in time and costs that might result if a direct appeal isallowed, the urgency, if any, in having a final determination of the matters in issue and the prospectsof success, and on the other hand, the disadvantages to the management of the court’s roll and tothe ultimate decision of the case if the SCA is bypassed.’3

12 Special leave of the Constitutional Court is required for the right to appeal against adecision of the Supreme Court of Appeal.4 An appellant must apply to the court within15 days of the judgment of the Supreme Court of Appeal.5 The test again is whether it isin the interests of justice for leave to be granted.6 There is no certification process in whichthe Supreme Court of Appeal is required to participate. In Fraser v Naude & others theConstitutional Court emphasized that, as in applications for direct access on appeal fromthe High Court, the interests of justice test in an application for leave to appeal against adecision of the Supreme Court of Appeal extends beyond the applicant’s prospects ofsuccess.7 In Fraser the Supreme Court of Appeal reversed a decision of the High Court toset aside an order of adoption. By the time the application for leave to appeal reached theConstitutional Court the adopted child was almost 3 years old and had spent his entire lifewith his adopted parents. In these circumstances, the court held, it was in the best interestsof the adopted child that an end be put to the litigation. The court accordingly invoked theinterests of justice to refuse leave to appeal without expressing any view on the merits ofFraser’s case.8

In cases where leave to appeal to the Constitutional Court is granted, rule 19 sets out theprocedure to be followed in the preparation of the record and the lodging of heads ofargument. Practitioners should note that in terms of Practice Directive 2 of the ConstitutionalCourt9 the number of each volume of an appeal record must appear on the spine of that

1 Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC), 1998 (10) BCLR 1207 (CC) at para33 and De Freitas & another v Society of Advocates of Natal (Natal Law Society Intervening) 1998 (11) BCLR1345 (CC).

2 MEC for Development Planning and Local Government in Gauteng v Democratic Party & others 1998 (4) SA1157 (CC), 1998 (7) BCLR 885 (CC) at para 32.

3 MEC for Development Planning and Local Government in Gauteng v Democratic Party & others 1998 (4) SA1157 (CC), 1998 (7) BCLR 885 (CC) at para 32.

4 Rule 20(1).5 Rule 20(2). The respondent is given 10 days to reply to the application for leave to appeal.6 S v Pennington & another 1997 (4) SA 1076 (CC), 1997 (10) BCLR 1413 (CC) at para 11.7 1999 (1) SA 1 (CC), 1997 (11) BCLR 1357 (CC) at para 7.8 Fraser v Naude & others (supra) at paras 8--10.9 1999 (2) SA 666 (CC), 1999 (3) BCLR 260 (CC), 1999 (1) SACR 370 (CC) at para 5.



volume. In other respects, the formal requirements prescribed for the appeal record are lessstrict than those of the Supreme Court of Appeal.1

(d) Documents lodged to canvass factual material

13Rule 30 provides that any party to any proceedings before the court, and an amicus curiaeproperly admitted by the court in any proceedings, shall be entitled, in documents lodgedwith the registrar, to canvass factual material which is relevant to the determination of theissues before the court and which does not specifically appear on the record. This may bedone provided that such facts are common cause or otherwise incontrovertible or are of anofficial, scientific, technical or statistical nature, capable of easy verification.2

This is what is known in the United States of America as a Brandeis brief.3 The name isderived from the case of Muller v Oregon,4 in which Louis D Brandeis, then an attorney,subsequently a justice of the Supreme Court, filed a brief which included social science datadrawn from books, articles and reports which supported the State of Oregon’s defence of theconstitutionality of a law that limited the hours of labour for women. The court tookcognizance of this material in reaching its decision. This type of brief is now commonly usedin the United States and in Canada.5

Facts contained in Brandeis briefs are usually concerned with the causes and effects ofsocial and economic phenomena.6 This type of fact is often in issue in constitutional litigationand may be proved by the opinion testimony of experts in the relevant field of knowledgecontained in affidavits or by way of extracts from published material, reports, and so on. Inthis way the court can be exposed to a broad canvass of knowledge without the parties havingto incur the costs of leading expert witnesses.7 The procedure also provides an amicus curiaewith the opportunity to place factual material before the court.

The factual material is to be contained in a document lodged in terms of the rules and maybe responded to by other parties within the time allowed for such a response in terms of therules. In other words, there is no provision for filing a separate document containing factualmaterial. If, for instance, an amicus curiae wishes to lodge factual material, this must be donein the document filed for the purpose of placing written argument before the court in termsof rule 9(7).

1 Compare Rule 19(2) and Practice Directive 2 of 1999 with Rule 8 of the Rules of the Supreme Court of Appeal.2 If reliance is to be placed on any evidence other than evidence contemplated in rule 30, that evidence must be

put on record before the matter reaches the Constitutional Court. See Brink v Kitshoff NO 1996 (4) SA 197 (CC),1996 (6) BCLR 752 (CC) at para 12; S v Lawrence; S v Negal 1997 (4) SA 1176 (CC), 1997 (10) BCLR 1348 (CC),1997 (2) SACR 540 (CC) at paras 14--16.

3 See below, Chaskalson ‘Evidence’ § 26.1(c).4 208 US 412, 28 SCt 324 (1908).5 See P W Hogg Constitutional Law of Canada 3 ed (1992) sec 57.2.6 Hogg Constitutional Law of Canada sec 57.2(a).7 Hogg Constitutional Law of Canada sec 57.2(b).



7.4 PRACTICE DIRECTIONS OF THE CONSTITUTIONAL COURT

(a) Practice Direction 11

14Practice Direction 1 covers issues relating to appearances in the Constitutional Court. Judgesof the Constitutional Court are to be addressed as ‘Justice X,’ and not as ‘Your Lordship’ or‘Your Ladyship’. The President may be addressed as ‘Justice Chaskalson’ or as ‘President’.Practitioners appearing at the Constitutional Court must robe and are expected to introducethemselves to the President, or in his absence to the presiding judge, but not to the otherjudges. Introductions are to be arranged through the President’s secretary. Practitioners mayaddress the court in any official language and the court is responsible for ensuring thepresence of interpreters where this is necessary. If a practitioner intends to argue in an officiallanguage other than that used in his or her heads, the registrar must be given seven days’written notice of this fact.

(b) Practice Direction 22

(i) Practice notes3

In any appeal to the Constitutional Court or application for confirmation of an order ofconstitutional invalidity, the party bringing the matter to the court4 must file a practice notesetting out the length of the record, or if it the record has not yet been transcribed, an estimateof its length and an estimate of the time required for transcription. The practice note mustalso set out any special circumstances which might justify a hearing of more than one day,or which might otherwise be relevant to the directions to be given by the President of thecourt.

1 Reported at 1995 (1) SA 877 (CC).2 Reported at 1999 (2) SA 666 (CC), 1999 (3) BCLR 260 (CC), 1999 (1) SACR 370 (CC).3 1999 (2) SA 666 (CC), 1999 (3) BCLR 260 (CC), 1999 (1) SACR 370 (CC) at para 1.4 When an application for leave to appeal is brought under Rule 18 or 20, the appellant must file his or her practice

note together with the application for leave to appeal. When an appeal against an order of constitutional invalidityis noted under Rule 15, the appellant must file his or her practice note together with the notice of appeal. When anapplication for confirmation of an order of constitutional invalidity is brought under Rule 15, the applicant mustfile his or her practice note together with the application for confirmation.



(ii) Electronic copies of documents

14APractice Direction 2 requests parties to provide electronic copies of any documents whichare longer than 5 pages and which are lodged with the Registrar. Electronic copies are to beprovided in WordPerfect 5, 6 or 7 format and may be lodged on disk, or e-mailed to the courtat [email protected] The provision of electronic copies is not compulsory, butparties lodging electronic copies of documents are given a substantial discount on theirobligations with respect to paper copies. Where an electronic copy of a document is lodgedit need be accompanied by only 13 paper copies, rather than the normal 25 copies.2

(iii) Electronic notices and communications3

Where the provisions of Rule 1(4) are invoked to serve a notice or ‘other communication’by electronic copy a hard copy of the notice or the communication must be lodged with theRegistrar ‘forthwith’ together with a signed certificate verifying the date of the notice orcommunication.4

1 1999 (2) SA 666 (CC), 1999 (3) BCLR 260 (CC), 1999 (1) SACR 370 (CC) at para 2.2 1999 (2) SA 666 (CC), 1999 (3) BCLR 260 (CC), 1999 (1) SACR 370 (CC) at para 3.3 1999 (2) SA 666 (CC), 1999 (3) BCLR 260 (CC), 1999 (1) SACR 370 (CC) at para 4.4 The certificate must be signed by the party serving the notice, not by the recipient of the notice.


[REVISION SERVICE 5, 1999] 7--14A

AppendixRULES OF THE CONSTITUTIONAL COURT

(Government Notice R757 published in Government Gazette 18944 of 29 May 1998)

DEPARTMENT OF JUSTICE14BThe President of the Constitutional Court in consultation with the Chief Justice has, under section 171of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), and section 16 of theConstitutional Court Complementary Act, 1995 (Act 13 of 1995), as amended, prescribed the rulescontained in the Annexure hereto regulating matters relating to the proceedings of and before theConstitutional Court with effect from 29 May 1998.

ANNEXURE

DIVISION OF RULESThese rules are divided as follows:

Definitions (rule 1)PART I: Sessions of the Court (rule 2)PART II: Registrar (rules 3 and 4)PART III: Service of process (rules 5 and 6)PART IV: Representation (rules 7 and 8)PART V: Amicus curiae submissions (rule 9)PART VI: Applications (rules 10--12)PART VII: Matters within the exclusive jurisdiction of the Court (rules 13--16)PART VIII: Direct access and appeals (rules 17--20)PART IX: Fees and costs (rules 21 and 22)PART X: Miscellaneous provisions (rules 23--35)SCHEDULE 1: FormsSCHEDULE 2: Fees

TABLE OF CONTENTS

NUMERICAL ORDERRule No Description 1. Definitions 2. Court terms 3. Registrar’s office hours 4. General duties of the registrar 5. Sheriff 6. Service of process 7. Representation of parties 8. Power of attorney or authorisation to act 9. Submission by an amicus curiae10. Application procedure11. Urgent application12. Argument13. Referral of a Bill14. Constitutionality of an Act15. Confirmation of an order of constitutional invalidity16. Certification of a provincial constitution17. Direct access in the interest of justice

7--14B [REVISION SERVICE 5, 1999]

Rule No Description18. Appeals from courts other than the Supreme Court of Appeal19. Procedure on appeal20. Appeal against a decision of the Supreme Court of Appeal21. Taxation of costs and attorneys’ fees22. Fees of the Court23. Library24. Translations25. Models, diagrams and exhibits26. Withdrawal of cases27. Format of documents28. Application of certain rules of the Uniform Rules29. Application of certain sections of the Supreme Court Act, 1959 (Act 59 of 1959)30. Documents lodged to canvass factual material31. General32. Execution33. Transitional provisions34. Repeal of rules35. Short title

REVISION SERVICE 3, 1998 ALPHABETICAL ORDERRule No Subject1520 Appeal against a decision of the Supreme Court of Appeal18 Appeal from courts other than the Supreme Court of Appeal28 Application of certain rules of the Uniform Rules29 Application of certain sections of the Supreme Court Act, 1959 (Act 59 of 1959)10 Application procedure12 Argument16 Certification of a provincial constitution15 Confirmation of an order of constitutional invalidity14 Constitutionality of an Act 2 Court terms 1 Definitions17 Direct access in the interest of justice30 Documents lodged to canvass factual material32 Execution22 Fees of the Court27 Format of documents31 General 4 General duties of the registrar23 Library25 Models, diagrams and exhibits 8 Power of attorney or authorisation to act19 Procedure on appeal13 Referral of a Bill 3 Registrar’s office hours34 Repeal of rules 7 Representation of parties 6 Service of process 5 Sheriff35 Short title 9 Submissions by an amicus curiae21 Taxation of costs and attorneys’ fees33 Transitional provisions24 Translations



Rule No Subject11 Urgent applications26 Withdrawal of cases

161 Definitions(1) In these rules any word or expression to which a meaning has been assigned in the Constitution

shall bear that meaning and, unless the context otherwise indicates ----‘affidavit’ includes an affirmation or a declaration contemplated in section 7 of the Justices of the

Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);‘apply’ means apply on notice of motion, and ‘application’ has a corresponding meaning;‘Court’ means the Constitutional Court established by section 166 (a) of the Constitution, read with

item 16 (2) (a) of Schedule 6 to the Constitution;‘court day’ means any day other than a Saturday, Sunday or public holiday, and only court days shall

be included in the computation of any time expressed in days prescribed by these rules or fixedby any order of the court;

‘directions’ means directions given by the President with regard to the procedures to be followed inthe conduct and disposition of cases;

‘judge’ means a judge or acting judge of the Court appointed under section 174 or 175 of theConstitution, sitting otherwise than in open court;

‘law clinic’ means a centre for the practical legal education of students in the faculty of law at auniversity in the Republic, and includes a law centre controlled by a non-profit organisationwhich provides the public with legal services free of charge and certified as contemplated insection 3(1)(f) of the Attorneys Act, 1979 (Act 53 of 1979);

‘legal representative’ means an advocate admitted in terms of section 3 of the Admission of AdvocatesAct, 1964 (Act 74 of 1964), or an attorney admitted in terms of section 15 of the Attorneys Act,1979 (Act 53 of 1979);

‘party’ or any other reference to a litigant in terms includes a legal representative appearing on behalfof a party, as the context may require;

‘President’ means the President of the Court appointed under section 174(3) read with item 16(2)(b)of Schedule 6 of the Constitution;

‘registrar’ means the registrar of the Court, and includes any acting or assistant registrar of the Court;‘sheriff’ means a person appointed in terms of section 2 of the Sheriffs Act, 1986 (Act 90 of 1986),

and includes a person appointed in terms of section 5 or section 6 of that Act as an acting sheriffor a deputy sheriff, respectively, and a sheriff, an acting or a deputy sheriff appointed in terms ofany law not yet repealed by a competent authority and, immediately before the commencementof the Constitution, in force in any area which forms part of the national territory;

‘Supreme Court of Appeal Rules’ means the rules regulating the conduct of the proceedings of theSupreme Court of Appeal published under Government Gazette R1207 of 15 December 1961,as amended;

‘the Constitution’ means the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996);and

‘Uniform Rules’ means the rules regulating the conduct of the proceedings of the several high courtspublished under Government Notice R48 of 12 January 1965, as amended.

(2) Any powers or authority vesting in the President in terms of these rules may be exercised by ajudge or judges designated by the President for that purpose.

(3) Any reference in these rules to a party having to sign documents shall be construed as includinga reference to a legal representative representing such a party, and a reference to lodging documentswith the registrar as including prior service of such documents on other parties and the lodging of 25copies of all relevant documents with the registrar.

(4) Notices, directions or other communications in terms of these rules may be given or made byregistered post or by facsimile or other electronic copy.

(5) The President may extend any time limit prescribed in these rules.(6) Written arguments, responses and any other representations to the Court shall be clear and

succinct.



PART ISESSIONS OF THE COURT

2 Court terms17(1) There shall be four terms in each year as follows: 15 February to 31 March, inclusive; 1 May to31 May, inclusive; 15 August to 30 September, inclusive; 1 November to 30 November, inclusive.

(2) A case may be heard out of term if the President so directs.(3) If the day fixed for the commencement of a term is not a court day, the term shall commence on

the next succeeding court day and, if the day fixed for the end of the term is not a court day, the termshall end on the court day preceding.

PART IIREGISTRAR

3 Registrar’s office hours(1) The office of the registrar shall be open from 8:30 to 13:00 and from 14:00 to 15:30 on court

days.(2) The registrar may in exceptional circumstances accept documents at any time, and shall do so

when directed by a judge.

4 General duties of the registrar(1) A notice of appeal, an order of court referring any matter to the Court by another court, or another

document by which proceedings are initiated in the Court in terms of these rules shall be numbered bythe registrar with a consecutive number for the year during which it is filed.

(2) Every document afterwards lodged in such a case or in any subsequent case in continuationthereof shall be marked with that number by the party lodging it and shall not be received by the registraruntil so marked.

(3) All documents delivered to the registrar to be filed in a case shall be filed by the registrar in acase file under the number of such case.

(4) A document referred to in subrule (1) is subject to the payment of R75,00 court fees in the formof a revenue stamp: Provided that if an indigent party is assisted or represented by an office or officerof the Human Rights Commission, the Legal Aid Board, a law clinic or pro Deo counsel, or satisfiesthe registrar in terms of subrule (5) that he or she is indigent, the payment of court fees shall be waivedby the registrar and he or she shall make a note to that effect on the first page of the document inquestion.

(5) A party who desires to initiate or oppose proceedings in the Court and who is of the opinion thathe or she is indigent, or anybody on behalf of such party, shall satisfy the registrar that, except forhousehold goods, wearing apparel and tools of trade, such party is not possessed of property to theamount of R20 000 and will not be able within a reasonable time to provide such sum from his or herearnings.

(6) Copies of a record may be made by any person in the presence of the registrar: Provided thatthe registrar shall at the request of a party make a copy of a recorded order, settlement, judgment ororder relating to costs on payment of court fees with revenue stamps of R1,00 for every 100 typedwords or part thereof, or on payment with revenue stamps of R0,50 for every photocopy of an A4-sizepage or part thereof and shall certify that copy or photocopy to be a true copy of the original: Providedfurther that if an indigent party is assisted or represented by an office or officer of the Human RightsCommission, the Legal Aid Board, a law clinic or pro Deo counsel, or satisfies the registrar that he orshe is indigent in terms of subrule (5), the payment of court fees may be waived by the registrar.

(7) The registrar shall sign (manually or by machining a facsimile of his or her signature), date andissue all process as sued out by the party.

(8) Whenever the Court makes an order declaring or confirming any law or provision thereof to beinconsistent with the Constitution under section 172 of the Constitution, the registrar shall, not laterthan 15 days after such order has been made, cause such order to be published in the Gazette and inthe provincial gazette concerned if the order relates to provincial legislation.



18(9) The registrar shall publish a hearing list which shall be affixed to the notice board at the Courtbuilding not less than 15 days before each term for the convenience of the legal representatives andthe information of the public.

(10) Directions with regard to any proceedings shall be furnished by the registrar to the partiesconcerned within five days of such directions having been given.

(11)(a) The registrar shall maintain the Court’s records and shall not permit any of them to beremoved from the court building.

(b) Any document lodged with the registrar and made part of the Court’s records shall not thereafterbe withdrawn permanently from the official court files.

(c) After the conclusion of the proceedings in the Court, any original records and papers transmittedto the Court by any other court shall be returned to the court from which they were received.

(12)(a) If it appears to the registrar that a party in unrepresented, he or she shall refer such party tothe nearest office or officer of the Human Rights Commission, the Legal Aid Board, a law clinic orsuch other appropriate body or institution that may be willing and in a position to assist such party.

(b) If no assistance is rendered by such Commission, Board, law clinic or other body or institution,the registrar shall assist such unrepresented party in preparing the papers required by these rules or, ifdirected to do so by the President, request an advocate or attorney to assist such party.

(c) The State or the registrar shall not be liable for any damage or loss resulting from assistancegiven in good faith by that registrar to such party in proceedings before the Court or in the enforcementof an order in terms of these rules in the form of legal advice or in the compilation or preparation ofany process or document.

PART IIISERVICE OF PROCESS

5 Sheriff(1) Unless the Court directs otherwise, all process of the Court, at the request of any party, shall be

served or executed through a sheriff of the High Court: Provided that a sheriff shall be under anobligation to effect service only if a party who desires the service has remunerated him or herbeforehand for the said service according to the tariff for sheriffs prescribed in rule 68 of theUniform Rules.

(2) Service or execution of judicial process shall, after payment of the remuneration, be effected bythe sheriff concerned without delay, and the sheriff may, where resistance to the due service or executionof judicial process is experienced or is reasonably expected, call upon any member of the South AfricanPolice Service referred to in sections 199 and 205 of the Constitution for assistance.

(3) A sheriff who is entrusted with the service or execution of judicial process shall ----(a) in writing notify the registrar and the party concerned who sued out the process that service or

execution has been duly effected, stating the identity of the person upon whom the process wasserved, the date and manner of service or the result of execution, and return that process to theregistrar; or

(b) in writing notify the party who sued out the judicial process concerned if he or she has beenunable to effect service or execution, and of the reason for such inability, and return that processto the party concerned, and keep a record of any process so returned.

(4) A sheriff shall after service or attempted service of any judicial process specify the total amountof his or her charges on the original of that document and each copy thereof, and the amount of eachof his or her charges separately on the return of service.

6 Service of process(1) Subject to subrule (2), the provisions of rule 4 of the Uniform Rules shall apply, with such

modifications as may be necessary, to the service of any process of the Court.(2) In any matter, including any appeal, where there is a dispute over the constitutionality of any

executive or administrative act or conduct or threatened executive or administrative act or conduct, orin any inquiry into the constitutionality of any law, including any Act of Parliament or that of aprovincial legislature, and the authority responsible for the executive or administrative act or conductor the threatening thereof or for the administration of any such law is not a party to the case, the party



challenging the constitutionality of such act or conduct or law shall, within five days of lodging withthe registrar a document in which such contention is raised for the first time in the proceedings beforethe Court, serve on the authority concerned a copy of such document and lodge proof of such servicewith the registrar, and no order declaring such act, conduct or law to be unconstitutional shall be madeby the Court in such matter unless the provisions of this rule have been complied with.

PART IVREPRESENTATION

7 Representation of parties19(1) Except where the Court or the President directs otherwise, no person shall be entitled to appearon behalf of any party at any proceedings of the Court unless he or she is entitled to appear in the highcourts.

(2) If a party dies or becomes incompetent to continue any proceedings, the proceedings shall therebybe stayed until such time as an executor, curator, trustee, guardian or other competent person has beenappointed in his or her place, or until such incompetence ceases to exist.

(3) Where an executor, curator, trustee, guardian or other competent person has been so appointed,the Court may, on application, order that he or she be substituted for the party who has so died orbecome incompetent.

8 Power of attorney or authorisation to act(1) A power of attorney need not be filed, but the authority of a legal practitioner to act on behalf

of any party may, within 21 days after it has come to the notice of any party that the legal practitioneris so acting, or with the leave of the court on good cause shown at any time before judgment, be disputedby notice, whereafter the legal practitioner may no longer so act, unless a power of attorney is lodgedwith the registrar within 21 days of such notice.

(2) Every power of attorney or authorisation to act lodged shall be signed by or on behalf of theparty giving it, and shall otherwise be duly executed according to law.

(3) No power of attorney or authorisation to act shall be required to be lodged by an attorney-general,a pro Deo counsel appointed by the State or the State Attorney, any deputy state attorney or anyprofessional assistant to the State Attorney or any attorney instructed, in writing or by telegram or byfax, by or on behalf of the State Attorney or a deputy state attorney in any matter in which the StateAttorney or deputy state attorney is acting as such by virtue of any provision of the State Attorney Act,1957 (Act 56 of 1957), or by virtue of any provision of any law not yet repealed by a competent authorityand, immediately before the commencement of the Constitution, in force in any area which forms partof the national territory.

PART VAMICUS CURIAE SUBMISSIONS

9 Submission by an amicus curiae(1) Subject to these rules, any person interested in any matter before the Court may, with the written

consent of all the parties in the matter before the Court, given not later than the time specified in subrule(5), be admitted therein as an amicus curiae upon such terms and conditions and with such rights andprivileges as may be agreed upon in writing with all the parties before the Court or as may be directedby the President in terms of subrule (3).

(2) The written consent referred to in subrule (1) shall, within five days of it having been obtained,be lodged with the registrar and the amicus curiae shall, in addition to any other provision, complywith the times agreed upon for the lodging of written argument.

(3) The President may amend the terms, conditions, rights and privileges agreed upon as referredto in subrule (1).

(4) If the written consent referred to in subrule (1) has not been secured, any person who has aninterest in any matter before the Court may apply to the President to be admitted therein as an amicuscuriae, and the President may grant such application upon such terms and conditions and with suchrights and privileges as he or she may determine.



20(5) An application pursuant to the provisions of subrule (4) shall be made ----(a) in the case of an application for leave to appeal to the Court, and in any case where the right of

direct access to the Court has been invoked, within 10 days after such application has been lodgedwith the registrar;

(b) in any other matter, not later than 10 days after the lodging of the respondent’s written submissionsor after the time for lodging such submissions has expired.

(6) An application to be admitted as an amicus curiae shall ----(a) briefly describe the interest of the amicus curiae in the proceedings;(b) briefly identify the position to be adopted by the amicus curiae in the proceedings;(c) set out the submissions to be advanced by the amicus curiae, their relevance to the proceedings

and his or her reasons for believing that the submissions will be useful to the Court and differentfrom those of the other parties.

(7) An amicus curiae shall have the right to lodge written argument, provided that such writtenargument does not repeat any matter set forth in the argument of the other parties and raises newcontentions which may be useful to the Court.

(8) Unless otherwise ordered by the Court, an amicus curiae shall be limited to the record on appealor referral and the facts found proved in other proceedings and shall not add thereto and shall notpresent oral argument.

(9) An order granting leave to be admitted as an amicus curiae shall specify the date of lodging thewritten argument of the amicus curiae or any other relevant matter.

(10) An order of Court dealing with costs may make provision for the payment of costs incurred byor as a result of the intervention of an amicus curiae.

(11) The provisions of rule 1(3) shall be applicable, with such modifications as may be necessary,to an amicus curiae.

PART VIAPPLICATIONS

10 Application procedure(1) Save where otherwise provided, in any matter in which an application is necessary for any

purpose, including ----(a) in respect of a matter contemplated in section 167(4)(a) of the Constitution, and(b) the obtaining of directions from the Court,such application shall be brought on notice of motion supported by an affidavit as to the factsupon which the applicant relies for relief and shall set out an address within 25 kilometres fromthe office of the registrar at which he or she will accept notice and service of all documents in theproceedings and shall set forth a day, not less than five days after service thereof on the respondent,on or before which such respondent is required to notify the applicant in writing whether he orshe intends to oppose such application and shall further state that if no such notification is given,the registrar will be requested to place the matter before the President to be dealt with in terms ofsubrule (4).

(2) When relief is claimed against any person, authority, government, organ of state or body, orwhere it is necessary or proper to give any of the aforementioned notice of an application referred toin subrule (1), the notice of motion shall be addressed to both the registrar and the aforementioned,otherwise it shall be addressed to the registrar and shall be as near as may be in accordance with Form 1or 2, as the case may be.

(3)(a) Any person opposing the granting of an order sought in the notice of motion shall ---- (i) within the time stated in the said notice, notify the applicant and the registrar in writing of his or

her intention to oppose the application and shall in such notice appoint an address within 25kilometres of the office of the registrar at which he or she will accept notice and service of alldocuments in the proceedings;

(ii) within 15 days of notifying the applicant of his or her intention to oppose the application lodgehis or her answering affidavit, if any, together with any relevant documents which may includesupporting affidavits.



21(b) The applicant may lodge a replying affidavit within 10 days of the service upon him or her ofthe affidavit and documents referred to in paragraph (a)(ii).

(c) (i) Where no notice of opposition is given or where no answering affidavit in terms ofparagraph (a)(ii) is lodged within the time referred to in paragraph (a)(ii), the applicant may withinfive days of the expiry thereof request the registrar to place the application before the President.

(ii) Where an answering affidavit is lodged, the applicant may request the registrar to place theapplication before the President within five days of the lodging of his or her replying affidavit or, if noreplying affidavit is lodged, within five days of the expiry of the time stated in paragraph (b).

(iii) If the applicant fails so to request the registrar within the allotted period, the respondent maydo so immediately upon the expiry thereof.

(d) The President may, when giving directions under subrule (4), permit the lodging of furtheraffidavits.

(4) When an application is placed before the President in terms of subrule (3)(c), he or she shallgive directions as to how the application shall be dealt with and, in particular, as to whether it shall beset down for hearing or whether it shall be dealt with on the basis of written argument or summarilyon the basis of the information contained in the affidavits.

11 Urgent applications(1) In urgent applications, the President may dispense with the forms and service provided for in

these rules and may give directions for the matter to be dealt with at such time and in such manner andin accordance with such procedure, which shall as far as is practicable be in accordance with theserules, as may be appropriate.

(2) An application in terms of subrule (1) shall be on notice of motion accompanied by an affidavitsetting forth explicitly the circumstances which justify a departure from the ordinary procedures.

12 Argument(1) Written argument shall be filed timeously.(2) Oral argument shall not be allowed if directions to that effect are given by the President.(3) (a) Oral argument shall be relevant to the issues before the Court and its duration shall be subject

to such time limits as the President may impose.(b) The parties shall assume that all the judges have read the written arguments and that there is no

need to repeat what is set out therein.(4) (a) Argument may be addressed in the Court in any official language and the party concerned

shall not be responsible for the provision of an interpreter.(b) Should a person wish to address the Court in an official language other than the language in

which such person’s written argument is couched, such person shall, at least seven days prior to thehearing of the matter in question, give written notice to the registrar of his or her intention to use anotherofficial language and shall indicate what that language is.

(5) On the Court’s own motion, or on the application of one or more parties, the Court may orderthat two or more cases, involving what appear to be the same or related questions, be argued togetheras one case or on such other terms as may be prescribed.

PART VIIMATTERS WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT

13 Referral of a Bill(1) The referral of a Bill in terms of section 79(4)(b) or 121(2)(b) of the Constitution by the President

of the Republic or by the premier of a province, as the case may be, shall be in writing and shall beaddressed to the registrar and to the Speaker of the National Assembly and the Chairperson of theNational Council of Provinces, or to the Speaker of the provincial legislature in question, as the casemay be.

(2) Such referral shall specify ----(a) the provision or provisions of the Bill in respect of which the President of the Republic or the

premier of a province has reservations;(b) the Constitutional provision or provisions relating to such reservations; and



(c) the grounds or reasons for such reservations.22(3) Political parties represented in the national Parliament or the provincial legislature concerned,as the case may be, shall be entitled as of right to make written submissions relevant to the determinationof the issue within the time specified in directions given under subrule (4).

(4) Upon receipt of the referral, the matter shall be dealt with in accordance with directions givenby the President, which may include a direction ----(a) requesting the relevant Speaker or the Chairperson of the National Council of Provinces, as the

case may be, for such additional information as the President may consider to be necessary orexpedient to deal with the matter; and

(b) calling upon all interested political parties in the national Parliament or the provincial legislatureconcerned, as the case may be, who may wish to do so to make such written submissions as arerelevant to the determination of the issue within a period to be specified in such direction.

14 Constitutionality of an Act(1) An application in terms of sections 80(1) and 122(1) of the Constitution by members of the

National Assembly or a provincial legislature shall be brought on notice of motion supported by anaffidavit as to the contentions upon which the applicants rely for relief and shall be lodged with theregistrar and served on the Speaker of the National Assembly and, where applicable, the Chairpersonof the National Council of Provinces, or on the Speaker of the provincial legislature concerned, as thecase may be.

(2) The notice shall request the Speaker and, if relevant, the Chairperson of the National Council ofProvinces to bring the application to the attention of all political parties represented in the relevanthouse or legislature in writing within five days of the service upon her or him of such application.

(3) The application referred to in subrule (1) shall be accompanied by a certificate by the Speakerof the legislature concerned that the requirements of section 80(2)(a) or section 122(2)(a) of theConstitution, as the case may be, have been complied with.

(4) The application referred to in subrule (1) shall also specify ----(a) the provision or provisions of the Act being challenged;(b) the relevant provision or provisions of the Constitution relied upon for such challenge;(c) the grounds upon which the respective provisions are deemed to be in conflict; and(d) the relief, including any interim relief, sought.

(5) (a) Any political party in the legislature concerned or any government that wishes to oppose thegranting of an order sought in such an application shall notify the registrar in writing within 15 daysof such application of such intention to oppose and shall, in such notification, appoint an address atwhich such party or government will accept notice and service of all documents in the proceedings.

(b) If such a notice is given, the application shall be disposed of in accordance with the provisionsof rule 10.

(6) If a notice to oppose is not lodged in terms of subrule (5), the matter shall be disposed of inaccordance with directions given by the President, which may include a direction ----(a) calling for such additional information as the President may consider to be necessary or expedient

to deal with the matter; and(b) that all interested political parties in the national Parliament or the provincial legislature

concerned, as the case may be, who wish to do so make such written submissions as are relevantto the determination of the issue within a period specified in such direction.

15 Confirmation of an order of constitutional invalidity(1) The registrar of a court which has made an order of constitutional invalidity as contemplated in

section 172 of the Constitution shall, within 15 days of such order, lodge with the registrar of the Courta copy of such order.

(2) A person or organ of state entitled to do so and desirous of appealing against such an order interms of section 172(2)(d) of the Constitution shall, within 21 days of the making of such order, lodgea notice of appeal with the registrar and a copy thereof with the registrar of the court which made theorder, whereupon the matter shall be disposed of in accordance with directions given by the President.

(3) The appellant shall in such notice of appeal set forth clearly the grounds on which the appeal is



brought, indicating which findings of fact and/or law are appealed against and that order it is contendedought to have been made.23(4) A person or organ of state entitled to do so and desirous of applying for the confirmation of anorder in terms of section 172(2)(d) of the Constitution shall, within 21 days of the making of suchorder, lodge an application for such confirmation with the registrar and a copy thereof with the registrarof the court which made the order, whereupon the matter shall be disposed of in accordance withdirections given by the President.

(5) If no notice or application as contemplated in subrules (2) and (4), respectively, has been lodgedwithin the time prescribed, the matter of the confirmation of the order of invalidity shall be disposedof in accordance with directions given by the President.

16 Certification of a provincial constitution(1) The Speaker of a provisional legislature which has passed or amended a constitution in terms of

sections 142 and 144(2) of the Constitution and which wishes such constitution or constitutionalamendment to be certified by the Court shall certify in writing the content of the constitution oramendment passed by the provincial legislature and submit such constitution or constitutional amend-ment to the registrar with a formal request to the Court to perform its functions in terms of section 144of the Constitution.

(2) The certificate contemplated in subrule (1) shall include a statement specifying that theconstitution or the constitutional amendment was passed by the requisite majority.

(3) Any political party represented in the provincial legislature shall be entitled as of right to presentoral argument to the Court provided that such political party may be required to submit a writtensubmission to the Court in advance of the oral argument.

(4) Upon the receipt of the request referred to in subrule (1), the matter shall be disposed of inaccordance with directions given by the President, which may include ----(a) referral to the Speaker for such additional information as is considered by the President to be

necessary or expedient to deal with the matter;(b) a direction specifying the time within which written submissions from interested political parties

shall be made;(c) a direction that any written submissions made in terms of paragraph (b) should be brought to the

attention of other political parties in the provincial legislature by such means as the Presidentconsiders suitable.

(5) An order of the Court pursuant to section 144 of the Constitution may specify the provisions ofthe provincial constitution or of the constitutional amendment, if any, which comply and which do notcomply with the Constitution.

PART VIIIDIRECT ACCESS AND APPEALS

17 Direct access in the interest of justice(1) An application for direct access as contemplated in section 167(6)(a) of the Constitution shall

be brought on notice of motion which shall be supported by an affidavit which shall set forth the factsupon which the applicant relies for relief.

(2) An application in terms of subrule (1) shall be lodged with the registrar and served on all partieswith a direct or substantial interest in the relief claimed and shall set out ----(a) the grounds on which it is contended that it is in the interests of justice that an order for direct

access be granted;(b) the nature of the relief sought and the grounds upon which such relief is based;(c) whether the matter can be dealt with by the Court without the hearing of oral evidence and, if it

cannot,(d) how such evidence should be adduced and conflicts of fact resolved.

(3) Any person or party wishing to oppose the application shall, within 10 days after the lodging ofsuch application, notify the applicant and the registrar in writing of his or her intention to oppose.

(4) After such notice of intention to oppose has been received by the registrar or where the time for



the lodging of such notice has expired, the matter shall be disposed of in accordance with directionsgiven by the President, which may include ----(a) a direction calling upon the respondents to make written submissions to the Court within a

specified time as to whether or not direct access should be granted; or(b) a direction indicating that no written submissions or affidavits need be filed.24(5) Applications for direct access may be dealt with summarily, without hearing oral or writtenargument other than that contained in the application itself: Provided that where the respondent hasindicated his or her intention to oppose in terms of subrule (3), an application for direct access shallbe granted only after the provisions of subrule (4)(a) have been complied with.

18 Appeals from courts other than the Supreme Court of Appeal(1) The procedure set out in this rule shall be followed in an application for leave to appeal directly

to the Constitutional Court where a decision on a constitutional matter, other than an order ofconstitutional invalidity under section 172(2)(a) of the Constitution, has been given by any court otherthan the Supreme Court of Appeal irrespective of whether the Chief Justice has refused leave or specialleave to appeal.

(2) A litigant who is aggrieved by the decision of a court and who wishes to appeal against it directlyto the Court shall, within 15 days of the order against which the appeal is sought to be brought andafter giving notice to the other party or parties concerned, apply to the court which gave the decisionto certify that it is in the interests of justice for the matter to be brought directly to the ConstitutionalCourt and that there is reason to believe that the Court may give leave to the appellant to note an appealagainst the decision on such matter.

(3) The application referred to in subrule (2) shall be in writing, signed by the appellant, and shallset out clearly and succinctly the constitutional matter raised in the case, the decision against whichthe appeal is made and the grounds on which such decision is disputed.

(4) The respondent or respondents may, within 10 days from the date upon which such applicationis served upon him, her or them, respond thereto in writing.

(5) The response shall be signed by the respondent or respondents.(6) (a) If it appears to the court hearing the application made in terms of (2) subrule that ----

(i) the constitutional matter is one of substance on which a ruling by the Court is desirable; and (ii) the evidence in the proceedings is sufficient to enable the Court to deal with and dispose of the

matter without having to refer the case back to the court concerned for further evidence; and(iii) there is a reasonable prospect that the Court will reverse or materially alter the judgment if

permission to bring the appeal is given,such court shall certify on the application that in its opinion, the requirements of subparagraphs (i), (ii)and (iii) have been satisfied or, failing which, which of such requirements have been satisfied and whichhave not been so satisfied.

(b) The certificate shall also indicate whether, in the opinion of the court concerned, it is in theinterests of justice for the appeal to be brought directly to the Constitutional Court.

(7) Within 10 days of the date on which a positive or negative certificate is given in terms ofsubrule (6) an appellant wishing to appeal to the Court on a constitutional matter shall lodge with theregistrar an application for leave to appeal.

(8) An application referred to in subrule (7) shall be signed by the appellant and shall contain ----(a) those portions of the judgment concerned that deal with the constitutional issue;(b) the application for the judge’s certificate brought in terms of subrule (2);(c) the judge’s certificate; and(d) such supplementary information or argument that the appellant considers necessary to bring to

the attention of the Court.(9) (a) Within 10 days from the date upon which an application referred to in subrule (7) is lodged,

the respondent or respondents may respond thereto in writing, indicating whether or not the partiesconcerned consent to leave to appeal being given and, if the application is opposed, the grounds forsuch opposition.

(b) The response shall be signed by the respondent or respondents.(10) (a) The Court shall decide whether or not to grant the appellant leave to appeal: Provided that in matters

of urgency and when the Court is out of term, the President may grant but not refuse leave to appeal.



(b) Applications for leave to appeal may be dealt with summarily, without hearing oral or writtenargument other than that contained in the application itself.

19 Procedure on appeal25(1) If leave to appeal is given in terms of rule 18, the appellant shall note and prosecute the appealas follows:(a) The appellant shall prepare and lodge the appeal record with the registrar within such time as

may be fixed by the President in directions.(b) The appeal record shall consist of the judgment of the court from which the appeal is noted,

together with all the documentation lodged by the parties in that court and all the evidence whichmay have been led in the proceedings and which may be relevant to the issues that are to bedetermined.

(c) (i) The parties shall endeavour to reach agreement on what should be included in the recordand, in the absence of such agreement, the appellant shall apply to the President fordirections to be given in regard to the compilation of the record.

(ii) Such application shall be made in writing and shall set out the nature of the dispute betweenthe parties in regard to the compilation of the record and the reasons for the appellant’scontentions.

(iii) The respondent may respond to the application within 10 days of being served with theapplication and shall set out the reasons for the respondent’s contentions.

(iv) The President may assign the application to one or more judges, who may deal with thematter on the papers or require the parties to appear before him or her or them on a specifiedday and at a specified time to debate the compilation of the record.

(v) The judge or judges concerned shall give directions in regard to the compilation of therecord, the time within which the record is to be lodged with the registrar and any othermatters which may be deemed by him or her or them to be necessary for the purpose ofenabling the Court to deal with the appeal, which directions may include that the matter bereferred back to the court a quo for the hearing of additional evidence specified in thedirections, or that additional evidence be put before the Court by way of affidavit orotherwise for the purpose of the appeal.

(2) (a) One of the copies of the record lodged with the registrar shall be certified as correct by theregistrar of the court appealed from.

(b) Copies of the record shall be clearly typed on stout A4 standard paper, double-spaced in blackrecord ink, on one side of the paper only.

(c) Legible documents that were typed or printed in their original form such as cheques and the likeshall not be retyped and clear photocopies shall be provided instead.

(d) All records shall be securely bound in suitable covers disclosing the names of the parties, thecourt appealed from and the names of the attorneys of the parties.

(e) Bulky records shall be divided into separate conveniently-sized volumes.(3) If a record has been lodged in accordance with the provisions of paragraphs (b) and (c) of

subrule (1), the registrar shall cause a notice to be given to the parties to the appeal requiring ----(a) the appellant to lodge with the registrar written argument in support of the appeal within a period

determined by the President and specified in such notice; and(b) the respondent to lodge with the registrar written argument in reply to the appellant’s argument

by a specified date determined by the President, which shall be subsequent to the date on whichthe appellant’s argument was served on the respondent.

(4) The appellant may lodge with the registrar written argument in answer to the respondent’sargument within 10 days from the date on which the respondent’s argument was served on theappellant.

(5) The President may decide whether the appeal shall be dealt with on the basis of written argumentsonly.

(6) Subject to the provisions of subrule (5), the President shall determine the date on which oralargument will be heard, and the registrar shall within five days of such determination notify all partiesto the appeal of the date of the hearing by registered post or facsimile.



20 Appeal against a decision of the Supreme Court of Appeal26(1) An appeal to the Court on a constitutional matter against a judgment or order of the SupremeCourt of Appeal shall be granted only with the special leave of the Court on application made to it.

(2) A litigant who is aggrieved by the decision of the Supreme Court of Appeal on a constitutionalmatter and who wishes to appeal against it to the Court shall, within 15 days of the judgment againstwhich the appeal is sought to be brought and after giving notice to the other party or parties concerned,lodge with the registrar of the Court an application for leave to appeal.

(3) (a) The application referred to in subrule (2) shall be in writing, signed by the appellant, andshall set out the constitutional matter raised in the case, the decision against which the appeal is madeand the grounds on which such decision is disputed.

(b) Such application shall contain ---- (i) the judgment of the Supreme Court of Appeal or, if such judgment is not yet available, the order

issued by the Supreme Court of Appeal;(ii) such supplementary information or argument that the appellant considers necessary to bring to

the attention of the Court.(4) (a) Within 10 days from the date upon which the application referred to in subrule (2) is lodged,

the respondent or respondents may respond thereto in writing, indicating whether or not the partiesconcerned consent to leave to appeal being given and, if the application is opposed, the grounds forsuch opposition.

(b) The response shall be signed by the respondent or respondents.(5) The provisions of rule 18(10) shall be equally applicable.

PART IXFEES AND COSTS

21 Taxation of costs and attorneys’ fees(1) Rules 9 and 10 of the Supreme Court of Appeal Rules regarding taxation and attorneys’ fees

shall apply, with such modifications as may be necessary.(2) In the event of oral and written argument, a fee for written argument may in appropriate

circumstances be allowed as a separate item.

22 Fees of the Court(1) In addition to the Court fees already prescribed in these rules the fees in Schedule 2 shall be the

fees of the court payable with revenue stamps.(2) The proviso to rule 4(4) and the provisions of rule 4(5) of the Supreme Court of Appeal Rules

shall apply, with such modifications as may be necessary.

PART XMISCELLANEOUS PROVISIONS

23 Library(1) The Court’s library shall be available for use by the judges, the staff of the Court and other

persons who have permission from the librarian for the purposes of constitutional research.(2) The library shall be open during such times as the reasonable needs of the Court may

require and its operation shall be governed by the rules made by the librarian in consultation with thePresident.

24 TranslationsWhere any record or other document lodged with the registrar contains material written in an

official language which is not understood by all the judges, the registrar shall have the portions of suchrecord or document concerned translated by a sworn translator of the High Court into a language orlanguages which will be understood by such judges, and shall supply the parties with a copy of suchtranslations.



25 Models, diagrams and exhibits(1) Models, diagrams and exhibits of material forming part of the evidence taken in a case and

brought to the Court for its inspection shall be placed in the custody of the registrar at least 10 daysbefore the case is to be heard or submitted.

(2) All models, diagrams and exhibits of material placed in the custody of the registrar shall beremoved by the parties within 40 days after the case is decided.27(3) When this is not done, the registrar shall notify the party concerned to remove the articlesforthwith and if they are not removed within six months thereafter, the registrar shall destroy them orotherwise appropriately dispose of them.

26 Withdrawal of casesWhenever all parties, at any stage of the proceedings, lodge with the registrar an agreement in writing

that a case be withdrawn, specifying the terms relating to the payment of costs and payment to theregistrar of any fees that may be due, the registrar shall, if the President so directs, enter such withdrawal,whereupon the Court shall no longer be seized of the matter.

27 Format of documents(1) Every document which exceeds five pages shall, regardless of the method of duplication, contain

a table of contents and a table of authorities with correct references to the pages in the document onwhich they are cited.

(2) The body of every document at its close shall bear the name of the party or his or her attorney,if applicable, and the original document shall be signed by the party or his or her attorney.

(3)(a) The registrar shall not accept for lodging any document presented in a form not in compliancewith this rule, but shall return it to the defaulting party indicating the instance in which there has beena failure to comply: Provided that if new and proper copies of any such document are resubmittedwithin five days of receiving written notification, such lodging shall not be deemed late.

(b) If the Court finds that the provisions of this rule have not been complied with, it may impose,in its discretion, appropriate sanctions, including but not limited to dismissal of the action or impositionof costs.

28 Application of certain rules of the Uniform RulesThe following rules of the Uniform Rules shall, with such modifications as may be necessary, apply

to the proceedings in the Court:Rule No Subject6(7) to 6(15) Joinder of parties on application and related matters28 Amendments to pleadings and documents35(13) Discovery, inspection and production of documents38(3) to 38(8) Procuring evidence for trial42 Variation and rescission of orders59 Sworn translators61 Interpretation of evidence62 Filing, preparation and inspection of documents63 Authentication of documents executed outside the Republic for use within the Republic64 Destruction of documents65 Commissioners of the Court

29 Application of certain sections of the Supreme Court Act, 1959 (Act 59 of 1959)The following sections of the Supreme Court Act, 1959 (Act 59 of 1959), shall apply, with such

modifications as may be necessary, to proceedings of and before the Court:Section Subject19bis Reference of particular matters for investigation by referee22 Powers of Court on hearing of appeals32 Examination by interrogatories of persons whose evidence is required in civil cases



33 Manner of dealing with commissions rogatoire, letters of request and documents for service originating from foreign countries

30 Documents lodged to canvass factual material(1) Any party to any proceedings before the Court, and an amicus curiae properly admitted by the

Court in any proceedings shall be entitled, in documents lodged with the registrar in terms of theserules, to canvass factual material which is relevant to the determination of the issues before the Courtand which do not specifically appear on the record: Provided that such facts ----(a) are common cause or otherwise incontrovertible; or(b) are of an official, scientific, technical or statistical nature, capable of easy verification.28(2) All other parties shall be entitled, within the time allowed by these rules for responding to suchdocument, to admit, deny, controvert or elaborate upon such facts to the extent necessary andappropriate for a proper decision by the Court.

31 GeneralThe Court may, on sufficient cause shown, excuse the parties from compliance with any of the

aforegoing rules and may give such directions in matters of practice and procedure as it may considerjust and expedient.

32 ExecutionCosts orders of the Court shall be executed in the magistrate’s court as follows:

(1) The costs order shall have the effect of a civil judgment of the magistrate’s court and the partyin whose favour a costs order was made shall be deemed the judgment creditor and the partyagainst whom such order was made shall be deemed the judgment debtor.

(2) The party in whose favour a costs order was made shall, where a costs order has not been compliedwith file with the registrar an affidavit setting out the details of the costs order and stating thatthe costs order has not been complied with or has not been complied with in full, as the case maybe, and the amount outstanding, and shall request the registrar to furnish him or her with a certifiedcopy of such costs order.

(3) The registrar shall, after having inspected the particular Court file to verify the contents of theaffidavit, furnish the party referred to in subrule (2) with a certified copy of the costs orderconcerned and shall record such furnishing on the Court file.

(4) The party referred to in subrule (2) shall file the said copy with the clerk of the civil court of thedistrict in which he or she resides, carries on business or is employed.

(5) Such order shall be executed in accordance with the provisions of the Magistrates’ Courts Act,1944 (Act 32 of 1944), and the Magistrates Courts Rules published under Government NoticeR1108 of 21 June 1968, as amended, regarding warrants of execution against movable andimmovable property and the issuing of emolument attachment orders and garnishee orders only.

33 Transitional provisionsWhen a time is prescribed for any purpose in terms of these rules, and such time would otherwise

have commenced to run prior to the commencement of these rules, such time shall begin to run onlyon the date on which these rules come into operation.

34 Repeal of rulesThe Rules of the Constitutional Court published under Government Notice R5 in Regulation

Gazette 5450 of 6 January 1995 shall be repealed on the date on which these rules come into operation:Provided that any directions in writing in terms of rule 3 of such rules pertaining to the procedures tobe followed in the determination of a dispute or an issue in cases already instituted shall remain inforce, unless repealed in writing by the President.

35 Short titleThese rules shall be called the Constitutional Court Rules, 1998.



SCHEDULE 1 ---- FORMSForm No 1. Notice of motion (to registrar) 2. Notice of motion (to registrar and respondent)

FORM 1

NOTICE OF MOTION

(to Registrar)

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No . . . . . . . . . . . . . . .29In the matter of:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Applicant)

Take notice that the above-named applicant applies to the Court for an order in the following terms:

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and that the affidavit of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , annexed hereto, will be used insupport thereof.

Kindly place the matter before the President to be dealt with in terms of rule 10(4).

Dated at . . . . . . . . . . . . . . . . , this . . . . . . . . . . . . day of . . . . . . . . . . . . . . . . . 19. . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applicant or attorney

To the Registrar of the above-named Court.



FORM 2

NOTICE OF MOTION

(to Registrar and Respondent)

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No . . . . . . . . . . . . . . .30In the matter between

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Applicant)

and

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Respondent)

Take notice that . . . . . . . . . . . . . . . . . . . . . . . . . (hereinafter called the applicant) intends to makeapplication to this Court for an order (a) . . . . . . . . . . . . . . . . . . . . . . (b) . . . . . . . . . . . . . . . . . . . . . . .(c) . . . . . . . . . . . . . . . . . . . . . (here set forth the form of order prayed) and that the accompanyingaffidavit of.......................... will be used in support thereof.

Take notice further that the applicant has appointed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(here set forth an address) as the address at which he or she will accept notice and service of all processin these proceedings.

Take notice further that if you intend opposing this application you are required (a) to notifyapplicant’s attorney in writing on or before . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (date) and (b) within15 days after you have so given notice of your intention to oppose the application, to file your answeringaffidavit, if any; and further that you are required to appoint in such notification an address at whichyou will accept notice and service of all documents in these proceedings.

If no such notice of intention to oppose is given, the applicant will request the registrar to place thematter before the President to be dealt with in terms of rule 10(4).

Dated at . . . . . . . . . . . . . . . . . . . . . . , this . . . . . . . . . . . . . . . . day of . . . . . . . . . . . . 19. . . .

. . . . . . . . . . . . . . . . . . . . . . . . Applicant or attorney

To:

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Respondent) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (Address)

(2) The registrar of the above Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



SCHEDULE 2 ---- FEES

R 31Lodging of any petition (other than the first document) . . . . . . . . . . . . . . . . . . . . . 10,00Lodging of an answering affidavit (each) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,00Lodging of a notice of appeal or cross-appeal (each) . . . . . . . . . . . . . . . . . . . . . . 15,00Order of the court granting leave to appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,00For the registrar’s certificate on certified copies of documents (each) . . . . . . . . . . . . . . 1,00Taxing fee in any matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,00

