CONSTITUTIONAL COURT 1995 – 2012 : HOW DID THE CASES REACH THE COURT , WHY DID THE COURT REFUSE TO CONSIDER SOME OF THEM , AND HOW OFTEN DID THE COURT INVALIDATE LAWS AND ACTIONS ?

The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court. Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review. The ways in which these 464 applications reached the Court were as follows: • 35 referrals in terms of the interim Constitution; • 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 78 applications for confirmations of parliamentary or provincial laws and actions of the President; • 45 applications for direct access to the Constitutional Court; • 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows: • 7 refusals in respect of 35 referrals in terms of the interim Constitution; • no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court; • 7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President; • 34 refusals in respect of 45 applications for direct access to the Constitutional Court; • 21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal; • 34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts; • 34 applications concerning previous judgments of the Court and other matters. The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered, was invalidated. The invalidations in the different categories rules and action were as follows. In respects of: • Draft constitutional texts – 3 refusals to certify out of 5 texts considered (60%); • Constitutional amendments – 1 invalidation out of 6 considered (16.66%); • Acts of Parliament – 85 invalidations out of 165 considered (51.51%); • Bills of Parliament – 0 invalidations out of 2 considered (0%); • Acts of Provinces – 6 invalidations out of 11 considered (54.54%); • Bills of Provinces – 1 invalidations out of 2 considered (50%); • Local government legislative measures – 2 invalidations out of 5 considered (40%); • Common law and customary law – 8 invalidations out of 11 considered (72.72%); • Administrative and executive action – 45 invalidations out of 71 considered (63,38%); • Court discretionary action – 14 out of 35 considered (40%); • Action in respect of delict and contract – 7 invalidations out of 14 considered (50%).


Introduction
Unlike Parliament, other courts, legislative and executive institutions at all levels of government, the Constitutional Court was a completely new institution when it was instituted in 1994.The Court has been the guardian of all actions to give effect to the most comprehensive law reform programme that has ever been undertaken in South African history, namely the new constitutional dispensation.The major role it has played in the transformation of South African society and the legal system cannot be denied by anybody However, as could have been expected, everybody, and particularly everyone who forms part of some or other legal circle, has an opinion on how successful or otherwise the court has been in fulfilling this role.
Opinions in this regard are often based on perceptions.The reason for this could be that the rather small number of high-profile judgments does not reflect the full picture of all the court's rulings and the effect it has had on society in general and on the legal system in particular. 1 The purpose of this article is to reflect on the outcome of the counting and classifying of certain aspects of the Constitutional Court judgments delivered between 1995 and 2012.Although is it generally recognised that statistics cannot replace sound judgments, judgments based only on intuition and assumptions are usually not as sound as they could be.It is better to know than to guess, even if it is not uncommon afterwards to adapt what you know to suit your case. IM Rautenbach.BA LLB (UP) LLD (UNISA).Research Professor, Faculty of Law, University of Johannesburg.Email: irautenbach@uj.ac.za. 1 Meydani Israeli Supreme Court 7 in an introduction to a quantitative study of rulings of the Israeli High Court of Justice.This study's cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written.
However, since the Constitution Seventeenth Amendment Act of 2012 expressly provides that the Constitutional Court now has jurisdiction to hear applications on non-constitutional matters, the figures contained in this article could be used at a later stage to determine what effect this amendment might have had on the functioning of the Court -that is, after the Court has been operating for some time as the so-called apex court.
Between 1995 and 2012, the Constitutional Court considered approximately 464 applications for review. 2wever, the Court did not consider the merits of all the cases that came to its attention. 3There were approximately 103 instances in which the Court refused to consider the merits. 4These comprise 22.19 % of the total number of 464.

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Automatic referrals by other courts in terms of the interim Constitution

General
The provisions of the interim Constitution which dealt with the exclusive jurisdiction of the Constitutional Court were extremely complex. 7Matters within the exclusive jurisdiction of the Constitutional Court included the constitutionality of all Acts and Bills of Parliament, disputes of a constitutional nature between state organs and other matters entrusted to the Court by other legislation. 8e Supreme Court of Appeal had no jurisdiction to adjudicate on any matter within the jurisdiction of the Constitutional Court. 9However, a constitutional matter could on appeal from a provincial Division of the High Court come before the court in matters that involved both constitutional and other disputes.If the Division could not dispose of the appeal without a finding on the constitutional dispute, the Division has to refer the constitutional dispute to the Constitutional Court. 106 The reasons for the findings on constitutionality are not recorded in this article.Such reasons deal with the substance of court judgments and ultimately with the effect of the judgments on the legal system.A subsequent article will provide an overview of the legal fields affected by the judgments and the impact of the judgments on these fields Provincial Divisions of the High Court had jurisdiction on a wide range of constitutional matters within their areas of jurisdiction and parties before a Court could for the purposes of a particular case agree that the provincial Court would exercise jurisdiction in matters within the exclusive jurisdiction of the Constitutional Court. 11The rules for referring constitutional matters within the exclusive jurisdiction of the Constitutional Court to the Court were complicated 12 and it serves no purpose to repeat them here.This project was not a success.
One of the advantages of "experimenting" within the framework of an interim constitution is that less successful enterprises need not be repeated.The breakdown per year is as follows : 1995 -12; 1996 -15; 1997 -5; 1998 -3.Of the 35 cases, the Supreme Court of Appeal referred 3 cases. 16The referrals from the other courts were: 17 Eastern Cape Division (Grahamstown) -1; Gauteng Division (Johannesburg) -8; Gauteng Division (Pretoria) -11; KwaZulu-Natal Division (Durban) -1; KwaZulu-Natal Division (Pietermaritzburg) -2; Western Cape Division (Cape Town) -8; and 1 combined referral from the Western Cape Division (Cape Town) and the Eastern Cape Division (Port Elizabeth).
The new Constitution abolished this system.After 1998 no referrals occurred in terms of these provisions.

Refusals to consider the merits of referrals/ applications
There were no refusals to consider the merits of applications in any of the applications referred to in this paragraph.

Invalidations
In exercising its jurisdiction on matters within its exclusive jurisdiction between 1995 and the end of 2012, the Constitutional Court considered The Constitutional Court has explained that the purpose of the confirmation procedure is "to preserve the comity between the judicial branch of government on the one hand, and the legislative and executive branches of government, on the other, by ensuring that only the highest court in constitutional matters intrudes into the domain of the principal legislative and executive organs of state", 37 and to ensure "that certainty is obtained as to the constitutionality of Acts of Parliament where that has been challenged". 38ction 167(2)(d) of the Constitution provides that any person or organ of state with sufficient interest may appeal, or apply directly to the Constitutional Court to confirm or vary an order of constitutional invalidity.The Constitutional Court has explained that although referrals of orders of constitutional invalidity are peremptory, provision has nevertheless been made for appeals and direct access because an appeal may permit more issues to be examined than would be the case in a mere referral. 39 In the years 1995 to 2012 there were 74 instances in which the Constitutional Court

Refusals to consider applications for confirmation
The In 2 of these 7 instances, the Court refused to consider the merits of the other Courts' invalidations because the issues were moot, either because the invalidity of the statutory provision had already earlier been confirmed by the Constitutional Court, 43 or because by the time the confirmation of invalidity was to be considered, Parliament had already passed legislation that rectified the defects in the invalidated legislation. 44The Court held that when an invalidated Act was repealed before the Constitutional Court had been able to consider the confirmation, the Court would, 40 The cases considered per year were : 1995: 0; 1996: 0; 1997: 2; 1998: 3; 1999: 5; 2000: 11;  2001: 5; 2002: 8; 2003: 2; 2004: 6; 2005: 3; 2006: 3; 2007: 3; 2008: 5; 2009: 10; 2010 however, still deal with the application if the invalidation order might indeed have a practical effect. 45In 3 instances the Constitutional Court refused to decide the confirmation issue because the confirmation procedure did not apply to the invalidations concerned, either because the invalidation of ministerial regulations issued in terms of a statute was involved, 46 or because it concerned an invalidation of actions of the President that need not be confirmed, 47 or because the organs of state involved did not try to resolve the issues at a political level as required by section 41(1)(h)(vi) of the Constitution. 48In 1 instance the Court referred the matter back to the invalidating Court, because that Court invalidated only one provision of the Act concerned instead of considering all the provisions. 49

Confirmation of invalidations
After considering the invalidations, the  where a constitutional issue that can also be heard by other courts is raised without having been considered by those courts. 56In these instances the Constitutional Court is approached outside the context of an appeal.(There may, however, be circumstances in which direct access may be granted in respect of an issue on which an appeal is pending in a provincial Court, if deciding the matter will fill a gap concerning a matter already on appeal from the Supreme Court of Appeal before the Constitutional Court, a decision on both matters will inevitably be the same and the Supreme Court of Appeal has devoted considerable attention to both matters when it dealt with the second matter.) 57When considering applications for direct access, the Constitutional Court has always emphasized that direct access is an extraordinary procedure to be followed in exceptional circumstances only 58  The numbers per year are as follows : 1995: 0; 1996: 3; 1997: 1; 1998: 3; 1999: 2; 2000: 3;  2001: 2; 2002: 3; 2003: 7; 2004: 2; 2005: 4;   there were too many factual matters to be resolved by lower courts; 63 and  the applicants provided no special reasons for direct access apart from the fact that the legislation or action might be unconstitutional; this is not a ground for direct access. 64her reasons provided by the Constitutional Court were that the Court lacked jurisdiction to hear the case, 65 that the application was premature because an appeal was pending, 66 that the applicants confused direct access with an appeal procedure because they sought the nullification of the judgment of another Court, 67 that the applicant tried to raise new issues in a separate procedure, 68 and that the issue was moot. 69

Invalidations
After considering the merits of direct applications in 11 instances, the Constitutional Court  invalidated Acts of Parliament in 4 instances, 70   The Constitutional Court therefore invalidated in 8 instances and refused to invalidate in 3 instances.

Refusals
In Of the 116 applications, 17 involved discretionary actions of courts a quo of which 6 were invalidated. 1145 of the 166 applications involved actions of private persons and institutions and in only in 1 instance was the action held to be unlawful. 115

Combined figures concerning appeals
The Constitutional Court received 251 applications for leave to appeal from all other courts.This constitutes 54.09% of the 464 applications and referrals it considered from 1995 until the end of 2012.
The Court refused to consider the merits of applications in 55 instances, that is, in respect of 21.91% of the applications for leave to appeal received.It therefore made decisions on the merits of applications for leave to appeal in 196 instances.other provinces 121 and previous legislation. 122There was also one judgment in which the court made a mero motu announcement about its own quorum requirements. 123 this category, no refusals to hear applications or "invalidations" are noted -it would be inappropriate to consider the determination of costs and reversal of previous cost orders or amendment to previous orders of the court itself as "invalidations".

Summary and notes
Between 1995 and the end of 2012 the Constitutional Court considered 464 applications for review.

How did the cases reach the court?
The ways in which these 464 applications reached the Court were as follows: It is not ordinarily in the interests of justice for a court to sit as a court of first and final instance, in which matters are decided without there being any possibility of appealing against the decision given.Experience shows that decisions are more likely to be correct if more than on court has been required to consider the issues raised.In such circumstances the losing party has an opportunity of challenging the reasoning on which the first judgment is based, and of reconsidering and refining arguments previously raised in the light of such judgment.

In how many instances did the Court invalidate laws and action?
The The invalidations in the different categories in respect of various kinds of law and action were as follows.In respects of: Acts of Parliament constitute the largest category of applications considered, to which the Constitutional Court reacted by invalidating some of the provisions considered.The real impact of the invalidation of legal rules can be assessed only by an analysis of the contents of invalidation orders and such an exercise was not the focus of this investigation.It is also very important to note that even refusals to formally invalidate legal rules could change the status quo in respect of the meaning of those rules.The Constitutional Court follows a rule that when legislation can be interpreted in more than one way and at least one of the interpretations amounts to a reasonable interpretation that does not conflict with the Bill of Rights, that particular interpretation must be followed. 131This means that without invalidating a legal rule, it may be assigned a meaning which it previously did not have.
Administrative, executive and private actions which were performed in terms of legal rules which the Court invalidated were, of course, also invalidated, but because such invalidity ensued from the invalidity of the authorising law, they were not counted in Processes of counting and classifying can be frustrating because they abound with pitfalls (more accurately "potholes" in the South African context) relating to incorrect counts and the subjectivity of classifications -ask anyone who grew up on a sheep farm about the frustrations of the numerous outcomes of counting the same flock over and over.However, it has to be done, even if it produces no more than a small contribution for improving the quality of the bigger debates that will follow sooner or later, after we have reached home after dusk.
FIGURE 1: TOTAL APPLICATIONS PER YEAR FIGURE 2: TOTAL APPLICATIONS / REFUSALS PER YEAR

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FIGURE 3: NUMBER OF INVALIDATIONS / CONFIMATIONS OF VALIDITY -MATTERS WITHIN THE EXCLUSIVE JURISDICTION OF THE CONSTITUTIONAL COURT Number Invalidated Confirmed validity Drafts of national Constitution 2 1 not certified 1 certified Drafts of provincial Constitutions 3 2 not certified 1 certified Constitutional amendments 6 1 5 Acts of Parliament 5 5 0 Bills of Parliament 2 0 2 Acts of provinces 1 0 1 Bills of provincial legislatures 2 1 1 Total Constitutional Court refused to consider 7 applications for confirmation of invalidity emanating from High Court Divisions 42 -1 application concerned an invalidation by the Gauteng Division (Johannesburg), 1 concerned an invalidation by the Gauteng Division (Pretoria), 1 concerned an invalidation by the KwaZulu-Natal Division (Pietermaritzburg), 1 concerned an invalidation by the Northern Cape Division (Kimberley); and 3 concerned invalidations by the Western Cape Division (Northern Cape).

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confirmed the invalidation of provisions of provincial legislatures in 4 instances 51 and refused to confirm the invalidation of provisions of provincial legislatures in 3 instances; 52  confirmed the invalidation of existing common law and its development to bring it in line with previous understanding of the rules concerned; 53  confirmed the invalidation of common law and provisions in an Act of Parliament in a combined confirmation; 54  confirmed the invalidation of customary law and provisions in an Act of Parliament in a combined confirmation; 55  confirmed the invalidation of provisions of Acts of Parliament in 42 instances and refused to confirm the invalidation of provisions of Acts of Parliament in 15 instances.The Constitutional Court therefore confirmed invalidations in 53 instances and refused to confirm invalidations in 18 instances.a) of the Constitution provides that national legislation or the rules of the court must allow a person, when it is in the interests of justice do so, to bring a matter directly to the Constitutional Court.Such direct access requires the leave of the Constitutional Court.Direct access to the Constitutional Court involves instances

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invalidated common-law rules and provisions of an Act of Parliament in reaction to a single application; 72  invalidated the determination of the number of seats allocated to a provincial legislature by the Electoral Commission; 73  invalidated in two instances the actions of the registrar of the Constitutional Court 74 and the registrar of a Division of the High Court. 75

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FIGURE 14: KINDS OF LAW AND ACTION -MERITS CONSIDERED / INVALIDATIONS

132
Pharmaceutical Manufacturers Association of SA.In re: Ex parte Application of the President of the RSA 2003 3 BCLR 241 (CC), 2000 2 SA 674 (CC); Mashava v President of the RSA 2004 12 BCLR 1243 (CC), 2005 2 SA 476 (CC); Kruger v President of the RSA 2009 3 BCLR 268 (CC), 2009 1 SA 417 (CC); Albutt v Centre for the Study of Violence and Reconciliation 2010 5 BCLR 291 (CC), 2010 3 SA 293 (CC); Democratic Alliance v President of the RSA 2012 12 BCLR 1261 (CC).133 President of the RSA v Hugo 1997 6 BCLR 708 (CC), 1997 4 SA 1 (CC), President of the RSA v SARFU 1999 10 BCLR 1059 (CC), 2000 1 SA 1 (CC); Masetlha v President 2208 1 BCLR 1 (CC), 2008 1 SA 566 (CC).Bibliography Cachalia et al Fundamental Rights Cacahlia A et al Fundamental Rights in the New Constitution (Juta Kenwyn 1994) Currie and De Waal Bill of Rights Handbook Currie I and De Waal J The Bill of Rights Handbook 5 th ed (Juta Cape Town 2005) Dugard 2006 SAJHR Dugard J "Courts of first and final instance?Towards a pro-poor jurisdiction for the South African Constitutional Court" 2006 SAJHR 261Israeli Supreme Court and the Human Rights Revolution -Courts as Agenda Setters (Cambridge University Press New York 2011) O'Regan 2012 SAJHR O"Regan K "Discourse and debate" 2012 SAJHR 116-134 Rautenbach "Teaching an 'Old Dog' New Tricks?"Rautenbach C "South Africa: Teaching an 'Old Dog' New Tricks?An Empirical Study of the Use of Foreign Precedents by the South African Constitutional Court" (1995-2010) in Groppi T and Ponthoreau M-C (eds) The Use of Foreign Precedents by Constitutional Judges (Hart Oxford 2013) 185-209

2 Matters within the exclusive jurisdiction of the Constitutional Court 2.1 General
1998, the Constitutional Court refused to consider the merits of the cases -6 in 1996 and 1 in 1997.The reasons for these refusals included that  the issue was moot; 18  the relevant incidents took place before the commencement of the interim Constitution and that the interim Constitution thus did not apply to them; 19  the application of the interim Constitution would not be decisive for the resolution of the dispute; 20 and the certification of provincial Constitutions, 34 and 2 the certification in terms of section 71 of the interim Constitution of the new national Constitution.35 to 2012. 40In 4 instances the Court considered invalidations of the same legislation by two different courts 41 and the Constitutional Court thus considered 78 invalidations by individual courts.The numbers of invalidations from respectively the Supreme Court of Appeal and each one of the Divisions of the High Court considered is indicated in table paragraph 3.3 below.
considered confirmation of invalidations -that is, 15.94% of the 464 cases 36 See also s 172(2)(a) of the Constitution.37 President of the RSA v SARFU 1999 2 BCLR 175 (CC), 1999 2 SA 14 (CC) para 29.38 Mkangeli v Joubert 2001 4 BCLR 316 (CC), 2001 2 SA 1191 (CC) para 11.PER / PELJ 2013(16)4 57 /487 considered from 1995 and this category of applications for access to the Constitutional Court therefore inevitably contains a very high percentage of instances in which applications have been refused.59Duringthe years 1995 to 2012, 45 applications for direct appeal were considered by

Appeals against judgments of the Supreme Court of Appeal
Constitutional Court is first and foremost a court of appeal.From 1995 until the end of 2012, the Court considered 251 applications for leave to appeal.Since the commencement of the present Constitution, the Supreme Court of Appeal and the Divisions of the High Court have had jurisdiction to decide all constitutional matters which do not fall within the exclusive jurisdiction of the Constitutional Court.Whilst it could have been expected that the normal flow of appeals from the provincial levels would therefore be through the Supreme Court of Appeal, this has not happened.As is indicated below in paragraph 5.3.1, section 167(6)(b) of the Constitution provides that a person may appeal directly to the Constitutional Court from any other court when it is in the interests of justice and with leave of the Constitutional Court.The 73 Premier of the Province of the Western Cape v Electoral Commission 1999 11 BCLR 1209 (CC).74Independent Newspapers (Pty) Ltd v Minister for Intelligence Services 2008 8 BCLR 771 (CC), 2008 5 SA 31 (CC).Gundwana v Steko Development CC 2011 8 BCLR 792 (CC), 2011 3 SA 608 (CC). 77ee Lewis 2009 LQR 456-457; Rautenbach and Heleba 2013 TSAR 406-409.77

Direct appeals from Courts other than the Supreme Court of Appeal
21 cases the applications for leave to appeal were refused.This number or not there is a right of appeal to any other Court in terms of either the Constitution or another statute.93Between1995 and the end of 2012 the Constitutional Court considered 150 applications for leave to appeal directly to the Constitutional Court.(In one instance the Constitutional Court considered appeals on the same subject matter from two different High Court Divisions 94 and two applications were noted for the purposes of this article.)The applications for direct access represent 32.32% of the 464 cases which the Court considered during this period.This constitutes the largest category of applications considered by the Court.
82See egBoesak v S 2001 1 BCLR 36 (CC), 2001 1 SA 912 (CC).83 S v Bierman 2002 10 BCLR 1078 (CC), 2002 5 SA 243 (CC).84SeeegHeadDepartment of Education Limpopo Province v Settlers Agricultural High School 2003 11 BCLR 1212 (CC).85 S v Western Areas Ltd 2004 8 BCLR 819 (CC).5.3.1 General Section 167(6)(b) of the Constitution provides that national legislation or the rules of the court must allow a person, when it is in the interests of justice to do so, to apply for leave to appeal directly to the Constitutional Court from any other Court.Such an application requires the leave of the Constitutional Court.A "direct" appeal to the Constitutional Court involves that the Constitutional Court hears an appeal when another Court has concurrent jurisdiction to hear that same appeal and has not yet done so.This provision therefore deals with situations in which the Supreme Court of Appeal is bypassed, and enables the Constitutional Court to hear an appeal Zealand v Minister for Justice and Constitutional Development 2008 6 BCLR 601 (CC), 2008 4 SA 458 (CC); Chagi v Special Investigating Unit 2009 3 BCLR 227 (CC), 2009 1 SACR 339 (CC); K v Minister of Safety and Security 2005 9 BCLR 835 (CC), 2005 6 SA 419 (CC).The applications for leave to appeal against judgments of particular Courts are as follows (the number of refusals to hear applications are also included in the table): 93 Director of Public Prosecutions: Cape of Good Hope v Robinson 2005 2 BCLR 103 (CC), 2002 6 SA 642 (CC) paras 22-25.See also in respect of direct appeals, Currie and De Waal Bill of Rights Handbook 123-132.94 Dlamini, Dladla, Joubert, Schietekat v State 1999 7 BCLR 771 (CC), 1999 4 SA 632 (CC).95 See eg Crown Restaurant CC v Gold Reef City Theme Park (Pty) Ltd 2007 5 BCLR 453 (CC), 2008 4 SA 16 (CC); Fourie v Minister of Home Affairs 2003 10 BCLR 1092 (CC), 2003 3 SA 501 (CC).105 Dudley v City of Cape Town 2004 8 BCLR 805 (CC), 2005 5 SA 429 (CC).106 See eg Billiton Aliminium SA Ltd t/a Hillside Aluminium v Khanyile 2010 5 BCLR 422 (CC).107 University of Witwatersrand Law Clinic v Minister of Home Affairs 2007 7 BCLR 821 (CC).108 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2001 1 BCLR 39 (CC), 2000 2 SA 1 (CC); Janse van Rensburg v Minister of Trade and Industry 2000 11 BCLR 1235 ; Print Media SA v Minister of Home Affairs 2012 12 BCLR 1364 (CC), 2012 6 SA 443 (CC).

7.2 In how many instances did the court refuse to consider the applications?
Premier of the Western Cape Province; Hlope v Freedom Under the Law 2012 1 BCLR 1 (CC).Since the Constitutional Court is primarily a court of appeal, it is not surprising that by far the greatest number of applications (251 out of 464, that is, 54.09%) consists of applications for leave to appeal against judgments of other courts.What is noticeable, however, is that the majority of these applications were for so-called direct appeal in terms of section 167(6)(b) of the Constitution, in which efforts were made to bypass the Supreme Court of Appeal. 124ut 50% more applications were received against judgments of the other Courts.Although the reasons which the Constitutional Court provided for refusing to accede to requests to appeal directly from other Courts to the Constitutional Court include a few references to the fact that the appeal must first be heard by the Supreme Court of Appeal, 125 the majority of reasons, as can be expected, are similar to those that applied to applications which emanated from Supreme Court of Appeal judgments.126Addtothis that the percentages of applications which the Constitutional Court refused to consider are in both instances almost the same, namely 21% in the case of applications against the Supreme Court of Appeal and 22.66% in the case of applications against other courts. 127hatever its motivations and intentions might have been, the outcome of the Constitutional Courts willingness to hear direct appeals from other Courts was that the Constitutional Court provided the Supreme Court of Appeal with some relief Constitution was amended by the Constitution Seventeenth Amendment Act and now provides that the Constitutional Court may decide on constitutional matters and "any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by the Constitutional Court". 128ossibility of direct access, particularly in the case of poor people, 129 it is founded upon the basic principle of all appeal systems, namely that justice requires that court decisions should in principle never be the outcome of the deliberations of a single court.This is a sound principle.The Constitutional Court explained it as follows in Bruce v Fleecytex Johannesburg CC:130 123Hlope v 128 For a discussion of this amendment, and its likely impact on the extent of the Constitutional Court's involvement with non-constituitonal matters, see Rautenbach and Heleba 2013 TSAR