SA JUDICIARY100 YEARS OLD

members of the Mthatha Bench Endnotes had been elevated to higher courts: 1  The then Republic of is one of the four Judge Madala - to the Constitutional Court; apartheid ’s independent states known as TBVC states. Though declared Judge Somyalo - as Judge President of the independent by South Africa, the TBVC states did greater ; not obtain international recognition. (The states were a component of the apartheid’s ‘Divide and Judge Jafta - to the Supreme Court of Appeal Rule’ policy.) As early as 1973, a Transkei High and later to the Constitutional Court; and Court was established; it had the status of a pro- (Ms) Justice Maya – to the Supreme Court of vincial division and was led by a Judge President. 2 The Appellate Division of the Supreme Court Appeal. of Transkei enjoyed an equal status in the then Republic of Transkei as that of the pre-1994 Re- Jurisprudential impact of public of South African Appellate Division sitting our court in . 3  There was no JSC then. In the pre-1994 South The division has delivered and still continues Africa judges were appointed by the State Presi- to deliver decisions that are reported in the dent. Blacks were not appointed to the Bench, and invariably all the seconded judges were South African Law Reports. These judgments white. An exception was in the late 1980s when have had an impact in the greater jurispru- Judge Dumbutshena, previously a judge in Zim- dence of South Africa.4 Given its geographical babwe, was seconded to the Appellate Division Acting Deputy Judge President XM Petse, of the Supreme Court of Transkei. location the court deals mainly with general 4 Mthatha  The following are but a few of the latest influ- civil matters, criminal law and customary law. ential decisions to have emanated from the divi- 5 sion: Sithonga vs Minister of Safety and Security SZ Peko - acting Judge President; and Despite its size , the division is arguably the & Others 2008 (1) SACR 376 (Tk), Magobodi vs XM Petse - the current acting Deputy Judge busiest of all the Eastern Cape divisions. Its Minister of Safety and Security & Another 2009 President. legal practitioners are often appointed as act- (1) SACR 339 (CC); Qaukeni Municipality vs FV Trading 2010 (1) (SA) 356 (SCA) Though a small division in comparison with ing judges throughout the High Courts and 5  The number of judges permanently appointed to the other divisions in South Africa, several Labour Court of South Africa. the division are less than ten.

A brief history of the Eastern Cape High Court,

By CTS Cossie and TM Ntsaluba, Bhisho Bar

The Eastern Cape High Court, Bhisho, appointed to head commissions of inquiry court are the following: formerly known as the Supreme Court of during their tenure, namely Judges Heath, • Zantsi v Council of State, , and Others Ciskei, was established in September 1981 White and Pickard. Other judges of the divi- 1995 (4) SA 615 (CC); under the leadership of the late DS de Wet as sion went on to head other courts, namely • Mati v Minister of Justice, Police and Prisons, Chief Justice. Judge Tshabalala (as Judge President of the Ciskei 1988 (3) SA 750 (CK); The seat of the court at that time was KwaZulu-Natal Division, now known as the • Steenkamp NO v Provincial Tender Board, in , a township just outside King KwaZulu-Natal High Court, , Eastern Cape 2006 (3) SA 151 (SCA); William’s Town in the Eastern Cape. Zwelitsha and KwaZulu-Natal High Court, Durban, • Poswa v Member of the Executive Council for was the administrative capital of the erstwhile respectively) and Judge Peko (as acting Economic Affairs, Environment and Tourism, Ciskei homeland which was soon to be granted Deputy Judge President of the Transkei Eastern Cape 2001 (3) SA 582 (SCA); ‘independence.’ The court was housed in the Division, now called the Eastern Cape High • Eastern Cape Provincial Government and homeland administration’s Department of Court, Mthatha). Others v Contractprops 25 (Pty) Ltd 2001 (4) Justice. Judges L van den Heever and B de The court is now known as the Eastern SA 142 (SCA); V Pickard served on the Bench during that Cape High Court, Bhisho, and Judge • Guzana v Council of State, Republic of Ciskei era with the latter serving as Deputy Chief Dhlodhlo is its acting Deputy Judge President. 1993 (2) SA 445 (CKA); • S v Ncanywa 1993 (2) SA 567 (CKA); Justice. The current dispensation is that the Eastern • Bongopi v Chairman, Ciskei Council of State The court moved from those humble Cape Province has four High Courts all of and Others 1993 (3) SA 494 (CKA). beginnings to the present court building which fall under one Judge President, Judge situated in Bhisho on 27 of January 1984. CM Somyalo. They are the Eastern Cape By then Judge Pickard was the Chief Justice. High Court, Bhisho, the Eastern Cape High The court then had an Appellate Division Court, Grahamstown, the Eastern Cape High A complete on which Rabie, Galgut, Van Winsen and Court, , and the Eastern Cape Diemont JJA served. High Court, Mthatha. Law Library Other judges of this division who have The court boasts the unrivalled history of over the years contributed immensely to the having hosted the trial of a sitting ‘Head of required for jurisprudence and growth of this court – State’ in the matter of S v Gqozo and Another mainly after the reincorporation of the home- cash 1994 (2) SA 756 (CK) in which a claim to land into South Africa on 27 April 1994 – immunity from prosecution by the incumbent were M Claasen, WH Heath, VEM Tshabalala, was dismissed. CS White, AEB Dhlodhlo, Y Ebrahim, ZS Peko Contact: E Coll at Some of the other important decisions (deceased), D Van Zyl and CT Sangoni. of the court or decisions of other (appeal) 082 569 0472 Some of the judges of this division were courts in matters that originated from the

52 advocate April 2010