THE Constitutional Court did not have the capacity to be the final court of appeal in all cases, Supreme Court of Appeal Judge KK Mthiyane said at the Judicial Service Commission (JSC) yesterday.

The Constitutional Court as the apex court in all matters (and not just constitutional ones) is the big change proposed by a constitution amendment bill and the Superior Courts Bill before Parliament.

But Judge Mthiyane said the Constitutional Court would not be able to do it because of the way it was structured .

Judge Mthiyane was the only candidate interviewed yesterday for the post of deputy president of the Supreme Court of Appeal - the fourth-highest judge in the country. He has been at the Supreme Court of Appeal since 2001 and has also acted on the Constitutional Court.

In his interview, he said if the Constitutional Court were to become the apex court, "there was a problem " because the court was not equipped to deal with the types and quantity of cases the Supreme Court of Appeal received .

"In fact, it might have a demeaning effect on that court - to lambast it with all sorts of everyday cases," he said.

He said the Constitutional Court sat "en banc" - all 11 judges heard every case. If all 11 judges had to deal with every appeal, it would "not be able to finish".

He was aware that the judges of the Constitutional Court also did not want to deal with issues that turned solely on common law.

Where someone went directly to the Constitutional Court and tried to bypass the Supreme Court of Appeal, they were often referred back to the appeal court.

Finally, he said that when the members of the Constitutional Court were interviewed, they were interviewed for the specific skills they had in the constitutional framework. If they were suddenly called upon to deal with common law and general matters, it "imposes a burden on them".

Judge Mthiyane said SA would get to a point where the Constitutional Court could be an apex court "at some point in time". But if it was to be the apex court with general jurisdiction, the way candidates were interviewed needed to change. The structure would need to be "redesigned" to allow it to accommodate all the different types of cases .

He said the criteria for hearing cases would also have to change - to give the Constitutional Court the power to select, "to say no, we want to deal with this case and not that case".

That way, the court could "plug the unnecessary influx".

Care also needed to be taken to prevent too many levels of appeal because it could prejudice poor litigants, he said.

Whereas big companies could pursue appeals through every layer of the system, poorer litigants could be prejudiced by the cost of more levels of appeal.

rabkinf@bdfm.co.za