High Court vs SCA vs Constitutional Court
South Africa has a layered court system. Most cases start in the Magistrates' Court or High Court. Appeals go progressively higher. Understanding the hierarchy helps you know where your case will be heard and what it costs to pursue it.
High Court (Division)
A superior court of first instance for civil matters above Magistrates' Court jurisdiction and serious criminal cases. Also handles reviews of lower court decisions.
When it applies: Use the High Court for: large civil claims (over R400,000), urgent interdicts, constitutional matters at first instance, reviews of administrative decisions.
Law: Superior Courts Act 10 of 2013; Constitution s166.
Example: A company sues a competitor for R3 million in the Gauteng High Court.
Supreme Court of Appeal (SCA) / Constitutional Court
The SCA is South Africa's highest court of appeal for non-constitutional matters. The Constitutional Court is the apex court on constitutional matters and has the final say on the Constitution.
When it applies: Appeal to the SCA after a High Court judgment; go to the Constitutional Court for constitutional issues or when the SCA's decision requires constitutional scrutiny.
Law: Constitution sections 167 (Constitutional Court) and 168 (SCA).
Example: After losing in the High Court and SCA, a company appeals to the Constitutional Court on the constitutional right to property.
Key Differences at a Glance
| Aspect | High Court (Division) | Supreme Court of Appeal (SCA) / Constitutional Court |
|---|
| Level |
First instance (and appeal from Magistrates' Court) |
SCA: final appeal on non-constitutional; CC: apex court on constitutional matters |
| Leave to appeal |
Required from High Court for some matters; right of appeal for others |
Leave to appeal required for both SCA and Constitutional Court |
| Cost |
Significant — attorney + advocate fees; adverse costs risk |
Very high — senior counsel fees; reserved for significant matters |
| Who appears |
Attorneys (in some courts) and advocates |
Senior counsel (SC/SC) typical; all attorneys of record must appear through advocates |
| Constitutional matters |
High Court can hear constitutional matters at first instance |
Constitutional Court has final word; SCA cannot decide constitutional matters that haven't been heard lower down |
| Judgments |
Binding on courts below |
SCA binding on all except CC; CC binding on all courts |
Frequently Asked Questions
Can I take any case to the Constitutional Court in South Africa?
No. The Constitutional Court only hears matters that involve a constitutional issue and grants leave only where the matter is of public importance or raises a genuine constitutional issue. It does not hear purely factual appeals.
What is the difference between an appeal and a review in South Africa?
An appeal challenges the correctness of a court's decision on the merits. A review challenges the process or jurisdiction — whether the decision-maker acted lawfully and fairly, regardless of the outcome.
Do I need a lawyer to approach the Constitutional Court in South Africa?
You can approach the Constitutional Court in person, but it is extremely complex. Legal Aid SA and pro bono organisations assist in matters of significant constitutional importance.