The Constitution in terms of s 173 confers inherent powers on the High Court, the Supreme Court of Appeal (SCA) and the Constitutional Court (CC) to protect and regulate their own process if it is in the interest of justice to do so. However, those powers do not exist without limitations regarding the instances in which they may be exercised. This article will critically examine the CC’s interpretation of s 173 of the Constitution and accentuate the fact that the s 173 inherent power is not unlimited.
The meaning and application of s 173 of the Constitution was briefly dealt with by the CC more than a decade ago in the matter of Children’s Institute v Presiding Officer, Children’s Court, Krugersdorp, and Others 2013 (2) SA 620 (CC). In this case, the CC considered the question of whether the High Court could have been well within its rights to invoke its inherent power in terms of s 173 of the Constitution to allow an amicus curiae (the friend of the court) to adduce evidence. In reaching its decision the CC gave regard to the High Court’s decision that ‘allowing an amicus to adduce evidence would constitute the creation of a new substantive right, which goes beyond the scope envisioned by section 173’.
In direct contrast to what the High Court had found, the CC found that even if r 16A of the Uniform Rules of Court could have been found to be lacking in respect of allowing an amicus to adduce evidence, it still would have been appropriate to invoke s 173 of the Constitution. In other words, it would have been possible for the High Court to exercise its inherent power in terms of s 173 of the Constitution to allow an amicus to produce evidence. This ruling was welcomed by many and hailed as a landmark judgment in that it ‘broke the silence’ by allowing an amicus to adduce evidence (see Darren Subramanien ‘Breaking the silence – friends of the court can adduce evidence Children’s Institute v Presiding Officer of the Children’s Court District of Krugersdorp Case CCT 69/12 [2012] ZACC 25’ (2013) 34 Obiter 333 at 345).
However, quite recently, the matter of Social Justice Coalition and Others v Minister of Police and Others 2022 (10) BCLR 1267 (CC) came before the CC. In this case, the CC grappled with the question pertaining to the scope of the inherent power in terms of s 173 of the Constitution. As strikingly different from what the CC itself had found in Children’s Institute in relation to the s 173 inherent powers, the same court found that s 173 does not give the court unfettered powers to do as it pleases. In reaching this conclusion, the CC referred to its earlier decision in the case of S v Molaudzi 2015 (2) SACR 341 (CC) wherein it held that the inherent power to regulate its own process applies to procedural rights rather than substantive rights. Furthermore, that a court may exercise inherent power to protect and regulate its own process when confronted by ‘inadequate procedures and rules in the sense that they do not provide a mechanism to deal with a particular scenario’.
The same sentiment had been echoed by the SCA in Oosthuizen v Road Accident Fund 2011 (6) SA 31 (SCA), a judgment that was handed down prior to the handing down of both the Children’s Institute and Molaudzi. In the Oosthuizen judgment, the SCA had found that the use of the court’s inherent power could be achieved in instances wherein the court otherwise has jurisdiction but is presented with court rules and procedures, which do not provide viable mechanisms to address the problem at hand.
The decision that was made by the CC in respect of the s 173 inherent powers, in the matter of Children’s Institute, was overturned by the same court in two judgments, namely Molaudzi as well as Social Justice Coalition. In this way, these two judgments reaffirmed what was ruled by the SCA in the Oosthuizen matter. As a result, it is safe to conclude that the exercise of the s 173 inherent power is strictly limited to instances in which the court, be it the High Court, the SCA, or the CC, is faced with court rules and procedures which do not address the problematic scenario facing the court at a particular time.
In conclusion, the s 173 inherent power is there to allow the High Court, the SCA, and the CC to protect and regulate their own process. However, as has already been highlighted above, such powers do not exist without limits, and this has been illustrated through case law mentioned above. What can be taken away from this article is that the s 173 inherent powers can aptly be exercised only in instances whereby the courts are faced with court rules and procedures which fail to address the procedural problem before the court.
Unathi Floyd Xokiso is a final year LLB student at the University of Johannesburg.
This article was first published in De Rebus in 2023 (Nov) DR 8.
