|
[ Home ] [ About government ]
[ Govt structure ] [
Justice system ]
Courts
Constitutional Court
The Constitutional Court, situated in Johannesburg, is the highest court
in all constitutional matters. It is the only court that may adjudicate disputes between
organs of state in the national or provincial sphere
concerning the constitutional status, powers or
functions of any of those organs of state, or that may decide
on the constitutionality of any amendment to the
Constitution or any parliamentary or provincial Bill.
The Constitutional Court makes the final decision on
whether an Act of Parliament, a provincial Act or
conduct of the President is constitutional. It consists
of the Chief Justice of South Africa, the Deputy Chief
Justice and nine Constitutional Court judges. Justice Pius Langa is Chief
Justice of South Africa and Justice Dikgang Moseneke is
Deputy Chief Justice. There are 11 constitutional court judges.
[ Top ]
Supreme Court of Appeal
The Supreme Court of Appeal, situated in Bloemfontein in the Free State, is the
highest court in respect of all other matters. It consists of
the President and Deputy President of the Supreme Court of Appeal, and a number of judges of appeal determined by an Act of
Parliament. The Supreme Court of Appeal has jurisdiction to hear
and determine an appeal against any decision of a high court.
Decisions of the Supreme Court of Appeal are binding on all
courts of a lower order, and the decisions of high courts
are binding on magistrates' courts within the respective areas
of jurisdiction of the divisions. The
SCA comprises 25 judges, including its president.
[ Top ]
High courts
There are 10 high court divisions: Cape of Good Hope
(with its seat in Cape Town); Eastern Cape (Grahamstown);
Northern Cape (Kimberley); Orange Free State (Bloemfontein);
Natal (Pietermaritzburg); Transvaal (Pretoria); Transkei (Mthatha);
Ciskei (Bhisho); Venda (Sibasa), and Bophuthatswana (Mmabatho).
Each of these divisions, with the exception of Venda, has a judge president and, if the Judge President so
determines, one or more deputy judge presidents, and as many
judges as the Judge President may determine from time to time.
There are also three local divisions: the Witwatersrand Local
Division (Johannesburg), Durban and Coast Local Division
(Durban), and South-Eastern Cape Local Division (Port Elizabeth).
Judges in these courts preside over these divisions.
A provincial or local division has jurisdiction in its own
area over all persons residing or present in that area. These
divisions hear matters that are of such a serious nature that
the lower courts would not be competent to make an appropriate
judgment or impose a penalty. Except where minimum or maximum
sentences are prescribed by law, their penal jurisdiction is
unlimited and includes handing down a sentence of life imprisonment in certain specified
cases.
[ Top ]
Circuit local divisions
These itinerant courts, each presided over by a judge of
the provincial division, periodically visit areas
designated by the Judge President of the provincial division
concerned.
[ Top ]
Other high courts
The Land Claims Court and the Labour Court have
the same status as the high court. The Land Claims Court hears matters on the restitution of land rights
that people lost after 1913 as a result of racially discriminatory
land laws. The Labour Court adjudicates
matters relating to labour disputes. Appeals are
made to the Labour Appeal Court.
Decisions of the Constitutional Court, the
Supreme Court of Appeal and the high courts are an
important source of law. These courts are required
to uphold and enforce the Constitution, which has
an extensive Bill of Rights binding all state organs
and all persons. The courts are also required to
declare any law or conduct that is inconsistent with
the Constitution to be invalid, and to develop common law that is consistent with the values of the Constitution and the spirit and purpose of the Bill of Rights.
[ Top ]
Regional courts
The
Minister of Justice and Constitutional Development may
divide the country into magisterial districts and create
regional divisions consisting of districts. Regional courts are
then established per province at one or more places in each regional division
to hear matters within their jurisdiction.
Unlike the High Court, at present, legislation limits the penal jurisdiction of the regional
courts to serious criminal matters. By mid-2008, draft legislation
was being considered to give regional courts civil
jurisdiction also. There are nine regioanl court presidents
and 328 regional court magistrates.
[ Top ]
Magistrates' courts
Magisterial districts have been grouped into 13 clusters
headed by chief magistrates. This system has streamlined,
simplified and provided uniform court-management systems
applicable throughout South Africa, in terms of judicial
provincial boundaries.
It has also facilitated the separation of
functions pertaining to the judiciary, prosecution and
administration; enhanced and developed the skills and training
of judicial officers; optimised the use of the limited available
resources in an equitable manner; and addressed imbalances
in the former homeland regions. In terms of the Magistrates Act, 1993 (Act 90 of 1993), all
magistrates in South Africa fall outside the ambit of the Public
Service. The aim is to strengthen the independence of the
judiciary.
Although the regional courts have a higher penal
jurisdiction than magistrates' courts (district courts), an
accused cannot appeal to a regional court against the
decision of a district court; only to the High Court.
By mid-2008, there were 366 magisterial
districts and main magistrates’ offices, 80 branch
courts and 246 periodical courts in South Africa.
There were 1 830 magistrates in the country,
including regional court magistrates.
In addition, full jurisdiction was conferred to
courts in rural areas and former black townships
that exercise limited jurisdiction and depend
entirely on the main courts in urban areas to deliver
essential justice services. Because this compels
the poor to travel to main cities for judicial services,
24 of the 80 branch courts countrywide were to be
converted during 2008/09 to hear, among other
things, maintenance, domestic violence, deceased
estates and children’s court cases. An estimated
seven million people will benefit from these courts.
[ Top ]
Criminal jurisdiction
Apart from specific provisions of the Magistrates' Courts Act, 1944 (Act 32 of 1944), or any other Act, jurisdiction regarding sentences imposed by district courts is limited to an imprisonment of not more than three years or a fine not exceeding R60 000. A regional court can impose a sentence of not more than 15 years' imprisonment or a fine not exceeding R300 000.
Any person charged with any offence committed within any district or regional division may be tried either by the court of that district or the court of that regional division.
Where it is uncertain in which of several jurisdictions an offence has been committed, it may be tried in any of such jurisdictions.
Where, by any special provision of law, a magistrate's court has jurisdiction over an offence committed beyond the limits of the district or regional division, the court will not be deprived of such jurisdiction.
A magistrate's court has jurisdiction over all offences except treason, murder and rape. A regional court has jurisdiction over all offences except treason. However, the High Court may try all offences. Depending on the gravity of the offence and the circumstances pertaining to the offender, the Directorate of Public Prosecutions (DPP) decides in which court a matter will be heard and may even decide on a summary trial in the High Court.
Prosecutions are usually summarily disposed of in magistrates' courts, and judgment and sentence passed.
The following sentences may, where provided for by law, be passed upon a convicted person:
- imprisonment
- periodical imprisonment
- declaration as a habitual criminal (regional courts and high courts)
- committal to an institution established by law
- a fine with or without imprisonment as an alternative, correctional supervision or a suspended sentence
- declaration as a dangerous criminal (regional courts and high courts)
- a warning or caution
- discharge.
The sentencing of 'petty' offenders to do community service as a condition of suspension, correctional supervision or postponement in appropriate circumstances, has become part of an alternative sentence to imprisonment. Where a court convicts a person of any offence other than one for which any law prescribes a minimum punishment, the court may, at its discretion, postpone the passing of sentence for a period not exceeding five years and release the convicted person on one or more conditions; or pass sentence, but suspend it on certain conditions.
If the conditions of suspension or postponement are violated, the offender may be arrested and made to serve the sentence. This is done provided that the court may grant an order further suspending the operation of the sentence if offenders prove that circumstances beyond their control, or any other good and sufficient reason prevented them from complying with the conditions of suspension.
[ Top ]
Other criminal courts
In terms of statutory law, jurisdiction may be conferred upon a chief or headman or his deputy to punish an African person who has committed an offence under common law or indigenous law and custom, with the exception of certain serious offences specified in the relevant legislation. The procedure at such trials is in accordance with indigenous law and custom. The jurisdiction conferred upon a chief and a magistrate does not affect the jurisdiction of other courts competent to try criminal cases.
[ Top ]
Community courts
South Africa’s community courts provide timely
judicial services – usually within 24 hours of
an arrest of a criminal suspect. This assists in
easing the country’s court case backlog.Community courts, like the
Hatfield Community Court in Pretoria, are normal district magistrates’
courts that assist in dealing with matters in
partnership with the local community and
businesses. These courts focus on restorative
justice processes, such as diverting young
offenders into suitable programmes.
The business community and other
civil-society formations contribute significantly to
the establishment and sustainability of these courts.
Thirteen community courts have been
established. By mid-2008, four were fully operational and had
been formally launched in Hatfield, Fezeka
(Gugulethu), Mitchells Plain and Cape Town.
Another nine pilot sites commenced in Durban
(Point), KwaMashu, Mthatha, Bloemfontein,
Thohoyandou, Kimberley, Phutaditjhaba, Hillbrow and
Protea (Lenasia).
[ Top ]
Courts for income tax offenders
In October 1999, the South African Revenue Service (Sars) opened a criminal courtroom at the Johannesburg Magistrate's Office dedicated to the prosecution of tax offenders.
The court deals only with cases concerning failure to submit tax returns or to provide information requested by Sars officials. It does not deal with bigger cases such as tax fraud.
Another Sars court operates twice a week at the
Roodepoort Magistrates’ Office. In 2005, a new
tax court facility was opened in Megawatt Park,
Sunninghill, Gauteng.
[ Top ]
Family courts
A family court structure and extended family advocate services are priority areas for the department. The establishment of family courts in South Africa is motivated by three broad aims, namely to:
- provide integrated and specialised services to the family as the fundamental unit in society
- facilitate access to justice for all in family disputes
- improve the quality and effectiveness of service delivery to citizens who have family law disputes.
To ensure the proper and efficient functioning of
maintenance courts, government has introduced
initiatives that include appointing and training
171 maintenance investigators, creating 569 maintenance clerk and 83 legal intern positions, appointing
87 legally qualified maintenance offices to
improve service delivery, and facilitating the
development of Magistrates’ Guidelines for the
Implementation of Maintenance and Operation
Isondlo.
Operation Isondlo, which the Department of Justice and Constitutional Development initiated in
2006/07, has led to many children’s maintenance
defaulters being traced, appearing in court and
paying maintenance.
Many new applications have been received
countrywide and the number of children receiving
maintenance has increased. In 2007/08, 20 744
warrants of arrest were issued for defaulters.
[ Top ]
Mediation in maintenance matters
In dealing with maintenance, there is an inevitable
link of dealing with mediation, although it is not
really recognised as mediation as such. The Maintenance
Act, 1998 (Act 99 of 1998) [PDF], provides for
an element of mediation to be used as a mechanism
in resolving disputes. A need has been identified
to train officials to deal with mediation as
this provides an opportunity for both parties to talk
things through. Both parties contribute towards
amicable resolution of maintenance and bring
about restoration of dignity to the aggrieved party.
The Johannesburg Family Court and Pretoria
Magistrate Court have been identified as pilot
sites as they are centrally located and it would be
easier for the national office to monitor and maintain
contact for their progress, before moving to
other regions. Once this is fully operational, it will
reduce high volumes of maintenance cases that
block the court and reduce the high turn-around
time in finalising family law matters.
[ Top ]
Domestic violence
The overall strategic objective of the Domestic
Violence Programme is to strengthen the effectiveness
of the Domestic Violence Act (DVA) 1998 (Act 116 of 1998) [PDF]. This will be implemented
through a series of review projects aimed at identifying
challenges and best practice in the past 10
years of the implementation of the DVA, 1998. The
projects will lay the foundation for informing the
development of a framework for the effective and
co-ordinated implementation of actions aimed at
providing victim-friendly court-support services.
This will include a holistic approach to all implementation
initiatives aimed at the eradication of
domestic violence.
[ Top ]
Equality courts
The establishment of equality courts seeks to achieve the expeditious and informal processin gof cases, which facilitates participation by the
parties
to the proceedings. The courts also seek to ensure
access to justice to all persons in relevant judicial
and other dispute-resolution forums.
South Africans’ rights are entrenched in and
protected by the South African Constitution and its Bill of Rights. In turn. laws give effect to the various rights. The right to equality, as one of these rights,
is protected by law in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) [PDF], and the Employment Equity Act, 1998 (Act 55 of 1998) [PDF]. The two acts work in
synergy.
The Equality Act, 1998 aims to:
- prevent and prohibit unfair discrimination and
harassment
- promote equality
- eliminate unfair discrimination
- prevent and prohibit hate speech.
The Act also provides for:
- remedies for victims of any of the above
- compliance with international law obligations, including treaty obligations
- measures to education the public and raise public awareness on equality.
By the end of 2007/08, 219 magisterial courts had been designated as equality courts and the remaining 152 magisterial districts were expected to be designated in 2008/09. Section 16(1)(a) of the Equality Act, 1998 provides that every high court acts as and equality court for its area of jurisdiction. To support the effective functioning of equlaity courts, 371 clerks of court, 129 judges and 732 magistrates were trained in equality matters.
To ensure the effectiveness of equality courts,
the Department of Justice and Constitutional
Development was expected to embark on a
nationwide campaign in 2008/09 to raise awareness on the purpose of the Equality Act, 1998 and the equality courts.
[ Top ]
Civil jurisdiction
Except when otherwise provided by law, the area of civil
jurisdiction of a magistrate's court is the district,
subdistrict or area for which the court has been established.
South African law, as applied in the
Western Cape, is in force on Prince Edward and Marion islands
which, for the purpose of the administration of justice, are
deemed to be part of the Cape Town magisterial district.
On 1 May 1995, the civil jurisdictional limits of
magistrates' courts were increased for both liquid and illiquid
claims, from R50 000 and R20 000 respectively, to R100 000.
In
addition to the considerable increase, the previous distinction
between jurisdictional limits regarding the different
causes of action was abolished.
Unless all the parties in a case consent to higher
jurisdiction, the jurisdiction of a magistrate's court is
limited to cases in which the claim value does not exceed R100 000 where the action arises out of a liquid document or credit
agreement, or R50 000 in all other cases.
[ Top ]
Small claims courts
Small claims courts have been established
in terms of the Small Claims Court Act, 1984 (Act 61 of 1984), to adjudicate over small civil
claims. They are created to eliminate the time-consuming
adversary procedures before and
during the trial of these claims. The limit of cases involving civil claims is R7 000. In 2008, there were 168 small claims courts throughout the country. Matters within small
claims courts are presided upon by commissioners
who are usually practising advocates or attorneys,
a legal academic or other competent person. The
service is voluntary as there are no fees paid to
the commissioners.
In 2007/08, the department appointed 60
commissioners and 23 advisory board members
to assist small claims courts.
Neither the plaintiff nor the defendant may be represented or
assisted by counsel at the hearing. The commissioner's decision
is final and there is no appeal to a higher court; only a review process is allowed.
The department has developed a national
programme on re-engineering small claims courts,
which aims to strengthen and roll out these courts
to rural and peri-urban areas by pursuing the strategic
objectives of
- providing access for all, especially the poor and
the vulnerable
- establishing systems and rules of court that are
accessible and easy to understand
- providing trained administrative support staff
- attracting and retaining commissioners.
Funding from the Swiss Agency for Development and Co-operation has
enabled the Small Claims Court Project Office to be
set up to manage the National Plan of Action aimed
at re-engineering small claims courts and
specifically addressing issues of training for
commissioners and clerks.
[ Top ]
Other civil courts
An authorised African headman or his deputy may hear and
determine civil claims arising from indigenous law and custom,
brought before him by an African against another African within
his area of jurisdiction.
Courts constituted in this way are
commonly known as chiefs' courts. Litigants have the right to
choose whether to institute an action in the chief's court or in
a magistrate's court. Proceedings in a chief's court are informal. An appeal
against a judgment of a chief's court is heard in a magistrate's
court.
Source: South Africa Yearbook 2008/09
Editor: D Burger. Government Communication and Information System
[ Top ]
Last modified: 06 July 2009 12:39:56. |
