Judicial Review of Inferior Court Proceedings - Or, the Ghost of Prerogative Writs in South African Law
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Judicial review of inferior court proceedings
- or, the ghost of prerogative writs in South
African law
HJ ERASMUS*
There is no procedure, other than inthe form of an appeal, whereby the proceedings of the Supreme
Court may be brought on review - Rose-Innes Judicial Review of Administrative Tribunals in
South Africa (1963) 11
1 Introduction
Superior courts in South Africa have statutory powers to review the proceedings of
inferior courts within theirjurisdiction. The proceedings of superior courts are not so
reviewable. Thus it was held in Gentiruco AG v Firestone SA (Pty) Ltd' that it was
common cause that the proceedings of the (then) supreme court are not reviewable;
the only remedy of an unsuccessful litigant is an appeal. The reason is that by statute
only 'the proceedings of inferior courts' have been and are reviewable.
The position is restated in Vereniging van Bo-Grondse Mynamptenare van SA v
President of the Industrial Court: Apart from the inherent power of the Supreme
Court to review the proceedings of domestic tribunals other than courts of law, by
statute only the proceedings of inferior courts have been and are reviewable by
a Provincial or Local Division of the Supreme Court ....2
The question as to the rationale of this statutory distinction between lower and
higher courts has never been raised, let alone answered. Why should the proceedings
of an inferior court be reviewable by a higher court, but the proceedings of a high
court not be reviewable by a court higher in the hierarchy? Section 16(1) of the
Namibian Supreme Court Act 15 of 1990, which confers upon the Namibian supreme
court jurisdiction to review the proceedings of the high court or any lower court,3
is indicative of the fact that there need not in principle be insuperable obstacles and
objections to subjecting the proceedings of a high court to review.
Any quest for the answer to the question must have as its starting point the
historical context within which the statutory provisions in question originally came
into being.
Former Judge of the High Court of South Africa. Research Associate, Department of Private Law,
University of Stellenbosch.
1972 1 SA 589 (A) 601E.
2 1983 1 SA 1143 (T) 1146D-F. See also Exparte Scott (1909) 26 SC 520 522; SA Technical Officials'
Association v President ofthe Industrial Court 1985 1 SA 597 (A) 611D.
The use of the nomenclature high court and supreme court has not in South and Southern Africa
been consistent through the years. Supreme court is often used to denote a superior court which
at other times is called a high court. Supreme court is sometimes also used to denote a superior
court which is higher in the hierarchy of courts than a high court. The position is usually clear
from the context within which the terms occur.
94
TSAR 2015.- 1
[ISSN 0257 - 7747]](ViewImageLocal?handle=hein.journals/jsouafl2015&div=10&collection=&method=preview&ext=.png&size=3)
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Judicial Review of Inferior Court Proceedings - Or, the Ghost of Prerogative Writs in South African Law
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