Why Nkandla case went straight to Concourt

2016-06-08 06:00


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I AM sure all South Africans have followed the Nkandla case in the Constitutional Court with great interest. I was just wondering why the matter was heard by the Constitutional Court directly and not by the Supreme Court of Appeal in Bloemfontein, like with the Oscar Pistorius case?


In South Africa, our courts are independent and subject only to the law and our Constitution. It is also the Constitution that sets out the structure of our court system and defines the roles and jurisdiction of each court in this country.

The matter of Pres. Jacob Zuma in respect of the Nkandla improvements was heard and decided on by the Constitutional Court and not in the Supreme Court of Appeal.

To understand why, it is important to know that there are differences between the Supreme Court of Appeal and the Constitutional Court.

The Supreme Court of Appeal, based in Bloemfontein, is the second highest court in South Africa.

It is a court of second instance, meaning that it only hears matters on appeal against decisions of a High Court.

Before any matter is heard by the Supreme Court of Appeal, the parties must have leave to appeal, granted either by the High Court or by the Supreme Court of Appeal itself.

The Supreme Court of Appeal can make an order concerning the constitutional validity of an act of parliament, a provincial act or any conduct of the president, but such an order regarding constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

The Constitutional Court, situated in Braamfontein, is the highest court in our country when it comes to the interpretation, protection and enforcement of constitutional matters.

It may only decide on constitutional matters and its decision on any such matter is regarded as final.

The normal route for a case to reach the Constitutional Court is after the High Court or Supreme Court of Appeal rules against an applicant, the Constitutional Court can then be approached on appeal.

The applicant will, however, have to show that the case concerns a constitutional matter before the judges will decide whether there is a reasonable prospect of success and allow the appeal.

To understand why the case of Pres. Zuma was referred directly to the Constitutional Court and not first to a High Court or eventually to the Supreme Court of Appeal, one must take note of Section 167(4)(e) of the Constitution, which determines that only the Constitutional Court may decide that parliament or the president has failed to fulfil a constitutional obligation.

As in the case of Pres. Zuma, the Constitutional Court will then act as both the court of first and last instance, meaning that this court must be approached directly and will have the final say on such a decision.

Section 172(1) of the Constitution goes further and gives the Constitutional Court the power to declare any act of parliament, a provincial act or any conduct of the president that is inconsistent with the Constitution as invalid.

Given that a ruling was required on whether a constitutional obligation rested on the president or parliament and whether it was fulfilled or not, it is clear that in terms of our Constitution, only the Constitutional Court had the jurisdiction to hear the matter and make a ruling and that the Constitutional Court had to be approached directly.

Given the democratic importance of the matter, it makes sense that our highest court should have the necessary power to deal with such an important issue directly, as it did.

Z Madalene Olivier, Associate, Phatshoane Henney Attorneys

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