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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.
In September 2011, Justice Mogoeng Mogoeng was appointed 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 ones. 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:
- Eastern Cape High Court,
Grahamstown
- Eastern Cape High Court, Port Elizabeth
- Eastern Cape High Court, Mthatha
- Eastern Cape High Court, Bhisho
- Free State High Court,
Bloemfontein
- North Gauteng High Court, Pretoria
- South Gauteng
High Court, Johannesburg
- KwaZulu-Natal High Court, Pietermaritzburg
- KwaZulu-Natal High Court, Durban
- Limpopo High
Court, Thohoyandou
- Northern Cape
High Court, Kimberley
- North West High Court,
Mahikeng
- Western Cape High
Court, Cape Town.
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Specialist high courts
The following specialist high courts exercise national jurisdiction:
- Labour Court and Labour Appeal Court in Braamfontein, Gauteng, which adjudicate over labour disputes and hear labour appeals, respectively
- Land Claims Court, 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
- Competition Appeal Court, situated in Cape Town, which deals with appeals from the Competition Tribunal
- Electoral Court, situated in Bloemfontein, which sits mainly during elections to deal with associated disputes
- Tax Court, situated in Pretoria, which deals with tax-related matters, including non-compliance with tax obligations.
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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. The Minister of Justice and Constitutional Development, with effect from August 2010, established a court for each regional division for the purposes of adjudicating over civil disputes. In addition, the Minister appointed within each regional division the places (64 in total) of holding court for adjudicating civil disputes. The divorce courts were subsumed under the regional-court divisions. The divorce court rules made under Section 10(4) of the Administration Amendment Act, 1929 (Act 9 of 1929), were repealed from 15 October 2010. The regional courts therefore started adjudicating
divorce matters from 15 October 2010. This has addressed the jurisdictional challenges in terms of which litigants have to travel to remote courts to get legal redress.
The Jurisdiction of Regional Courts Amendment Act, 2008 [PDF]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 to represent their clients in matters where they ordinarily brief counsel, thus reducing the cost of litigation and increasing 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.
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.
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 limited resources equitably; 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 R12 000.
By March 2012, there were 240 small claims courts countrywide. 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.
In 2010/11, the Department of Justice and Constitutional Development appointed 229 commissioners 217 advisory board members to assist small claims courts.
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 commissioners are paid no fees.
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 such 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. Small claims courts constitute an inexpensive tool that was created to settle minor civil disputes in an informal manner.
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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.
The right to equality 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, 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.
After the Minister designated the remaining magisterial districts as equality courts in 2009, the Department of Justice and Constitutional Development held a series of consultations in various provinces. Mpumalanga, North West, Northern Cape, Western Cape and KwaZulu-Natal were covered by 2011. The remaining provinces were expected to follow.
The department is engaged in the Access to Justice and Promotion of Constitutional Rights Programme. This programme was developed under the framework of the joint European Union/South Africa (EU/SA) Country Strategy Paper and National Indicative Plan, which set out South Africa's development strategy between 2007 and 2013 and identifies the areas to be funded by the EU.
The aim of the programme is to contribute to the promotion, protection and realisation of rights established in the Constitution through the following three key performance areas:
- improving access to justice
- raising awareness of rights
- strengthening participatory democracy.
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Traditional courts
There are traditional courts (formerly chiefs' courts) in 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].
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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 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 were formally launched in Hatfield, Gauteng; and Fezeka (Gugulethu), Mitchell's Plain and Cape Town in the Western Cape.
Another nine pilot sites commenced in Durban (Point) and KwaMashu in KwaZulu-Natal, Mthatha, Eastern Cape; Bloemfontein and Phuthaditjhaba in the Free State; Thohoyandou, Limpopo; Kimberley, Northern Cape; and Hillbrow and Protea (Lenasia) in Gauteng.
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:
- providing integrated and specialised services to the family as the fundamental unit in society
- facilitating access to justice for all in family disputes
- improving 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.
The civil jurisdictional limits of magistrates' courts were increased for both liquid and illiquid claims to R100 000.
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 2011/12
Editor: D Burger. Government Communication and Information System
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Last modified: 14 January 2013 10:01:24. |
