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The SCA’s use of the term ‘court below’

The SCA’s use of the term ‘court below’

The SCA’s use of the term ‘court below’

Sechaba Mohapi is a Law Researcher for the Supreme Court of Appeal of South Africa. He clarifies what is meant when the Supreme Court of Appeal uses the term ‘court below’ in their judgements;

During interviews conducted by the Judicial Service Commission (JSC) on 6 April 2016, for two vacancies on the Supreme Court of Appeal (SCA), which were subsequently filled by Justices Van der Merwe and Mocumie, both from the Free State Division of the High Court, the following exchange took place during Judge Baartman’s interview:

JSC Commissioner: Judge, there’s always a term used by the SCA, it appears almost in every SCA judgment, but when I read from the Constitutional Court judgments it doesn’t appear. Why is it necessary to refer to a judgment from the High Court as a judgment from the court below?

Judge: For one, it is the court below, and it very often is not the court in which the trial was conducted – the trial court could be a regional court, like [in] the Van Schalkwyk matter, and the appeal court was the “court below” and that is how it is referred to. When dealing with the three courts, it’s easier to identify which court you are referring to.

JSC Commissioner: If for instance the Constitutional Court, when dealing with a judgment from the SCA, were to say: “This judgment from the court below . . .” would you be comfortable?

Judge: It is the court below.

Notwithstanding the obvious hierarchy of our courts, what is apparent from the questions by the JSC Commissioner – poised as they were at probing the SCA’s use of the term ‘court below’ – is that the Commissioner (and perhaps those from some quarters of our society sharing his view) seems to take exception to the SCA’s use of the term when referring to the High Court. The only possible inference that can be drawn from the Commissioner’s line of questioning is that the exception so taken is premised on an assumption (an unfair and unfortunate one it must be added) that the SCA’s use the term ‘court below’ is meant in some demeaning way in relation to the High Court.

For a start, and as a matter of fact, the Commissioner’s assertion that the Constitutional Court does not make use of the term is inaccurate, with respect:

  • In Director of Public Prosecutions Transvaal v Minister of Justice and Constitutional Development & others [2009] ZACC 8; 2009 (4) SA 222 (CC), a case that emanated in the High Court, where at the consolidated sentencing proceedings, that court had mero motu raised the constitutional validity of certain provisions of the Criminal Procedure Act 51 of 1977 and, after hearing argument, found that ss 153(3) and 153(5), 158(5), 164(1), 170A(1) and 170A(7) were inconsistent with s 28(2) of the Constitution, 1996, and were thus invalid. In the Constitutional Court’s refusal to confirm constitutional invalidity of the impugned provisions, in a separate concurring judgment by Skweyiya J, the learned Justice used the term three times to describe the High Court (paras 110, 115 and 145).
  • In Chirwa v Transnet Limited & others [2007] ZACC 23; 2008 (4) SA 367 (CC), a case concerning the interpretation of s 157 of the Labour Relations Act 66 of 1995 (LRA) and whether that provision, either expressly or by necessary implication, conferred exclusive jurisdiction to the Labour Court and other mechanisms established by the LRA for the resolution of labour disputes. There once again Skweyiya J used the term (para 19).
  • In S v Basson [2005] ZACC 10; 2007 (3) SA 582 (CC), a case concerning Dr Basson who had been charged in the High Court on 67 counts, including murder, fraud and conspiracy to commit various offences, the majority of which arose from his alleged activities while serving as a member of a covert division of the South African Defence Force prior to 1994. In a unanimous judgment of ‘The Court’ (Chaskalson CJ, Langa DCJ, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O’Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacooob J), the term was used three times in reference to the High Court (paras 134, 135 and 150).

These are just a few examples which demonstrate the inaccuracy of the JSC Commissioner’s assertion – all three of which are important decisions which should not have escaped the Commissioner’s attention, but might have very well escaped memory. More decisions could be located but are not necessary to prove this point as a matter of fact.

This should resolve, without more, that the SCA never uses nor has it ever in the past used the term to demean the High Court, just as neither the Constitutional Court has or does. It then should beg the question: why the Commissioner – an officer of the court in his full-time professional capacity – would not give the SCA the benefit of the doubt that it does not or would not?

The use of the term ‘court below’ can be traced back to the rules of the Privy Council (Judicial Committee), an erstwhile highest court of appellate jurisdiction of our land amongst other British dominion territories, made possible through GN 771, 9 May 1911. (See Thomas Preston Privy Council Appeals (London, Eyre & Spottiswoode; 1900) 173.) Even as they currently stand, the rules of the Privy Council define the term thus (under rule 2):

‘“court below” means the court from which an appeal (or application for permission to appeal) is made to the Judicial Committee’.

And the term is used eleven other times in the rules.

The term ‘court below’ is perfectly fine to use by any court of higher standing in the hierarchy of courts. It is no different from the Latin ‘court a quo’ meaning the court from which an appeal has been taken. It is thus no anomaly nor should it be regarded as such. The Commissioner can rest assured that it was out of no slight that the SCA used and will continue to use the term, so will the Constitutional Court. It is not out of any lording of superiority that the term is employed by a higher court, it is merely factual and descriptive of the court from which the appeal comes in plain language which facilitates a broader understanding of court decisions by the public.

Watch the full JSC interview with Judge Baartman for the Supreme Court of Appeal:

Read Judge Baartman’s profile and interview synopsis.

Read the transcript of the JSC interview with Judge Baartman.

One Comment

  1. Avatar
    mvuzo ntyesi
    Jul 12, 2017

    it is so unfortunate that the writer goes to town about what the commissioner might have intended through his questions . the inferences drawn by the writer fail to take into account other questions which are relevent . for example , we asked questions about other colonial , outdated terms which are used in courts like ” my Lord ” , ” my Lady ” . the emphasis of the questins relate to transformation and decolonisation of court process . the assetion is that the constitutional court and even High court do not often refer to other courts as court below . throughout these engagements , the candidates accepted the need for a change in these teminology . your reliance on some British and colonial statutes including Brish practises are not helpful but rather emphasise the need for a change which is what we are calling for. it seems that you are not a soldier for change and that you would go all the way to defend all these colonial court practises which we seek to undo. whether the constitutional court or other courts use the term , it does not justify its continued use . the point was not raised as an attack upon the SCA but rather the use of the term itself

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