The size of the bench is not a formality. It determines what the Court can decide, and in a divided Court it can determine the outcome.
Three judges
For any hearing, the Supreme Court consists of at least three Judges.
Three is the floor, not the ceiling. The Court may sit with five — and does, in matters of particular constitutional importance, in special references under section 19, and where the Court is invited to reconsider one of its own earlier decisions.
Benches are always constituted in odd numbers, so that a majority exists. A bench of two is not a properly constituted Supreme Court for a hearing, though two judges may complete an appeal already begun by three — see below.
When five judges sit
Neither the Constitution nor the Supreme Court Act prescribes when five judges must sit. It is a matter for the Chief Justice in constituting the Court.
The situations in which a five-judge bench is commonly constituted are:
Special references under Constitution section 19, where the Court is asked for an opinion on a constitutional question at the instance of an authority rather than in litigation between parties.
Cases said to require reconsideration of a previous Supreme Court decision. A three-judge bench can depart from an earlier three-judge decision, but a larger bench carries greater weight where the Court is being asked to unsettle established authority.
Matters of exceptional constitutional or public importance, including references under section 18.
A party may draw the Court’s attention to the importance of the question and ask that a larger bench be constituted, but the composition of the Court is not something a litigant controls. Make the request early, in writing, with reasons — not at the hearing.
When one Judge is enough
The jurisdiction may be exercised by a single Judge in cases provided for by an Act or by the Rules of Court. Section 10(1) of the Act names three:
(a) to give leave to appeal;
(b) to extend the time within which notice of appeal or of an application for leave may be given;
(c) to admit an appellant to bail.
Section 5(1) adds a further list of things a Judge may do while an appeal is pending — directions not involving the decision on the appeal, interim orders to prevent prejudice, orders for security for costs, orders dismissing an appeal for default in furnishing security, and orders admitting an appellant to bail.
Order 7 Rule 3 of the Supreme Court Rules 2012 provides that where an appeal lies only with leave, an application for leave to appeal may be heard and determined by a Judge.
Order 7 Rule 1 sends an application to extend time to a Judge, and Rule 2 requires the Registrar to take all steps necessary to have it heard as soon as is practicable after filing.
A direction or order made by a Judge under section 5 is deemed to be a direction or order of the Supreme Court, and may be discharged or varied by the Court.
Section 10(2): where a Judge refuses an application for leave, an extension of time, or bail, the appellant may apply to the Supreme Court to have the matter determined by that Court.
This is not an appeal from the Judge. The Court determines the matter itself. It means a refusal at the single-Judge stage is not necessarily the end of the road — but the application to the Court must be made, and made promptly.
Losing a judge part-way
Where a Judge hearing an appeal becomes unable, before delivery of judgment, to continue through illness or any other cause, the hearing shall continue, judgment shall be given by the remaining Judges, and the Court shall be deemed to be duly constituted.
Unless — (a) either party does not agree; or (b) only one Judge remains. In either case the appeal shall be reheard.
If a three-judge appeal continues with two, and those two disagree, there is no majority. Section 7(2) then applies: where the opinions are divided so that there is no majority opinion, the judgment appealed against stands.
In other words, a tied appeal fails. That is the practical reason a party who thinks the appeal is finely balanced may prefer a rehearing to a two-judge decision — and section 3(2)(a) gives them that choice.
See what happens when the judges disagree and decisions by fewer than three judges.
What this means for your case
- Procedural applications are usually heard by one Judge. Leave, extension of time, stay and bail do not require the full Court.
- The appeal itself is heard by three or more. There is no shortcut to a substantive hearing before a single Judge.
- A single Judge’s refusal is reviewable by the Court under section 10(2) — but only for the matters that section covers.
- If the bench is reduced mid-appeal, you have a decision to make. Consenting to continue with two judges risks a tie, which means the judgment below stands.
Sources
- Constitution — ss 161, 162
- Supreme Court Act (Chapter 37) — ss 3, 5, 7, 10, 12
- Supreme Court Rules 2012 — O 7 rr 1–3
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.