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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 the 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 Sandile Ngcobo is the Chief Justice of South Africa, and Justice Dikgang Moseneke is the Deputy Chief Justice of the Constitutional Court. There are nine Constitutional Court judges, excluding the Deputy Chief Justice and the Chief Justice.
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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 other than constitutional matters. It consists of the President and Deputy President of the SCA, and 23 other judges of appeal. The SCA has jurisdiction to hear and determine an appeal against any decision of a high court. Justice Lex Mpati is the President of the SCA.
Decisions of the SCA 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.
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High courts
A high court has jurisdiction in its own area over
all persons residing or present in that area.
These courts hear matters that are of such a
serious nature that the lower courts would not
be competent to make an appropriate judgment
or to impose a penalty.
Except where a minimum
or maximum sentence is prescribed by law, their
penal jurisdiction is unlimited and includes handing
down a sentence of life imprisonment in certain
specified cases.
There are 13 high courts: the Eastern Cape High Court,
Grahamstown; the Eastern Cape High Court, Port Elizabeth; the Eastern Cape High Court, Mthatha;
the Eastern Cape High Court, Bhisho; the Free State High Court,
Bloemfontein; the North Gauteng High Court, Pretoria; the South Gauteng
High Court, Johannesburg; the KwaZulu-Natal High Court, Pietermaritzburg;
the KwaZulu-Natal High Court, Durban;
the Limpopo High
Court, Thohoyandou;the Northern Cape
High Court, Kimberley; the North West High Court,
Mafikeng; and the Western Cape High
Court, Cape Town.
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Specialist high courts
The specialist high courts that exercise national jurisdiction are the Labour Court and the Labour Appeal Court situated in Braamfontein, Gauteng, which adjudicate over labour disputes and hear labour appeals, respectively; the Land Claims Court, situated in Randburg, Gauteng, which hears matters on the restitution of land rights that people lost after 1913 as a result of racially discriminatory land laws; the Competition Appeal Court, situated in Cape Town, which deals with appeals from the Competition Tribunal; the Electoral Court, situated in Bloemfontein, which sits mainly during elections to deal with associated disputes; and the Tax Court, situated in Pretoria, which deals with tax-related matters, including
non-compliance with tax obligations.
Decisions of the Constitutional Court, the SCA and the high courts are an important source of law. These courts 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 develop common law that is consistent with the values of the Constitution, and the spirit and
purpose of the Bill of Rights.
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Circuit local divisions
These itinerant courts, each presided over by a judge of the provincial division, periodically conduct hearings at remote areas outside the seat of the High Court designated by the Judge President of the provincial division concerned. This is with a view to enhance access to justice.
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Regional courts
Regional courts are established largely in accordance with provincial boundaries with a regional court division for each province to hear matters within their jurisdiction. There are nine regional court presidents and 351 regional court magistrates.
Regional courts hear most serious matters, including murder and rape but excluding treason. The penal jurisdiction of regional courts were increased and, similarly to the high courts, regional courts may pass life sentences.
The regional courts will, by virtue of the Jurisdiction of Regional Courts Amendment
Act, 2008 (Act 31 of 2008) [PDF], adjudicate over civil disputes. In 2010, processes were underway to pave the way for the implementation of the Act. Prime among those is the need to build capacity at regional court level to deal with civil and divorce matters. The divorce courts will be subsumed under the regional-court divisions. This will address the jurisdictional challenges in terms of which litigants have to travel to remote courts to get legal redress.
The formal training of magistrates and legal practitioners around this legislation and other areas of judicial work will be the responsibility of the newly established South African Judicial Education Institute, which was established by Act 14 of 2008. The purpose
of the institute is to promote the independence, impartiality, dignity, accessibility and effectiveness of the courts by providing judicial education for judicial officers.
In carrying out this function, the institute is primarily directed and controlled by the judiciary. The institute will provide education and training for aspirant and newly appointed judicial officers and ongoing legal education and training for experienced judicial officers.
The Jurisdiction of Regional Courts Amendment Act, 2008 will, in the medium to long term, reduce the workload in the high courts. In this way, divorce and other family-law matters and civil disputes of an amount determined from time to time will be within the jurisdiction of regional courts. This means that attorneys will have the opportunity of representing their clients in matters where they ordinarily brief counsel. This will in turn reduce the cost of litigation and increase access to justice.
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Magistrates' courts
The Minister of Justice and Constitutional Development may divide the country into magisterial districts and create regional divisions consisting of districts.
By mid-2010, the country was divided into 384 magisterial districts (18 subdistricts), 384 main magistrates' offices (18 detached courts), 79 branch courts and 235 periodical courts. The magisterial districts are still informed by the pre-1994 demarcations of the defunct self-governing states and the Republic of South Africa territory. Processes are underway to align the magisterial districts in accordance with the constitutional dispensation.
By mid-2010, there were 1 914 magistrates in the country, including regional court magistrates. Magisterial districts were 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 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 limited resources in an equitable manner; and addressed imbalances in the former homeland regions.
In terms of the Magistrates' Act, 1993 (Act 90 of 1993) [PDF], all magistrates in South Africa fall outside the ambit of the Public Service. The aim is to strengthen the independence of the judiciary.
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. [ 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 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 in these courts is R7 000.
Matters within small claims courts are presided over 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 2009/10, the Department of Justice and Constitutional Development appointed 113 commissioners and 84 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.
The department continues to strengthen the capacity of small claims courts. The improvement of the functioning of the small claims courts is a key priority area. The small claims courts constitute an inexpensive tool that was created to settle minor civil disputes in an informal manner.
By May 2010, there were 206 small claims courts. The department, in partnership with representatives of the legal fraternity and the Swiss Agency for Development and Cooperation, finalised manuals for commissioners of small claims courts and for court officials, to be followed by training programmes in conjunction with the Justice College.
The department aimed to establish an additional 60 new courts by the end of the 2010/11 financial year and a further 60 by the end of the 2011/12 financial year.
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Equality courts
The establishment of equality courts seeks to
achieve the expeditious and informal processing
of 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 Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 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 educate the public and raise public awareness on equality.
On 28 August 2009, the Minister of Justice and Constitutional Development, Mr Jeff Radebe, designated the remaining magisterial districts as equality courts for their areas of jurisdiction.
The designation increased the number of equality courts to 386 nationally, making equality courts more accessible to communities. Following the designation, the department undertook a series of initiatives to strengthen and ensure effective functioning of the equality courts. These included provincial izindaba, and awareness and outreach programmes.
In the second quarter of the 2009/10 financial year, officials from the department conducted training for the advice centres based in rural communities in the Eastern Cape and Free State. This training continued to other provinces during the course of the 2010/11 financial year.
By mid-2010, the department engaged the South African Police Service to include equality training in its curriculum, enabling police officers to advise complainants and make more informed referrals.
The department also collaborated with the South African Broadcasting Corporation to conduct interviews on various radio stations in the 11 official languages. The intention was to reach more remote communities so that they could learn and understand the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.
The Act has been translated in all official languages.
The department is engaged in the Access to Justice and Promotion of Constitutional Rights Programme in partnership with the European Union (EU). The Equality Act, 1998 is one of the pieces of legislation that is going to benefit from the programme.
The EU has committed €25 million (about R250 million), which will be disbursed over a period of three years. Through this programme, 45 community advice centres are expected to be established across the country.
The primary purpose of these centres will be to educate the communities on their constitutional rights, the Service Charter for Victims of Crime [PDF] and how to access the different courts, including the equality courts and the small claims courts.
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Traditional courts
There are traditional courts (formerly chiefs' courts) established at traditional community areas in rural villages. The judicial functions of traditional leaders are regulated in terms of sections 12 and 20 and the Third Schedule of the repealed Black Administration Act (BAA), 1927 (Act 38 of 1927).
The BAA, 1927 was repealed by the Repeal of the Black Administration Act and Amendment of Certain Laws Act, 2005 (Act 28 of 2005) [PDF]. However, sections 12 and 20 and the schedule had been retained through a sunset clause until the enactment of the Traditional Courts Bill, 2008 [PDF] on 30 December 2010.
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Community courts
South Africa has established community courts on a pilot basis to provide speedy resolution of certain types of community offences. These courts focus on restorative justice processes, such as diverting young offenders into suitable programmes.
These courts seek to assist the country's court case backlog. Community courts, such as 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.
The business community and other civil-society formations have contributed significantly to the establishment and sustainability of these courts.
Thirteen community courts have been established. Four are 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, Phuthaditjhaba, Hillbrow and Protea (Lenasia).
Lessons from the pilot sites will assist in finalising the policy and legislative framework that will institutionalise community courts as a permanent feature of the judicial system.
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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 Magistrate’s Office. A tax court
facility was opened in Megawatt Park, Sunninghill,
Gauteng, in 2005.
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Pilot sites for 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 was 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.
With the implementation of the Jurisdiction of Regional Courts Amendment Act, 2008 in August 2010, regional courts in South Africa also have jurisdiction to hear family-law cases, including divorce matters.
The department is no longer planning the building of new family courts, but is developing a policy to prioritise family-law services, which include domestic violence, maintenance, divorce and children's court matters, in all courts.
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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 by 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.
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 that any other good and sufficient reason prevented them from complying with the conditions of suspension.
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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 was established.
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.
Traditional courts may hear and determine civil claims arising from indigenous law and custom, brought before them by an African against another African within his area of jurisdiction.
Source: South Africa Yearbook 2010/11
Editor: D Burger. Government Communication and Information System
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Last modified: 26 May 2011 15:06:56. |
