Courts in South Africa
South African Judiciary
The Judicial authority of the Republic of South Africa is vested in the courts. These provisions are contained in Section 165 of the Constitution of the Republic of South Africa, 1996. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
The Constitutional Court This court, the highest in South Africa on constitutional matters, was born out of the country's first democratic Constitution in 1994. In an acclaimed building at Constitution Hill, the 11 judges stand guard over the Constitution and protect everyone's human rights.
The Constitutional Court only makes decisions about issues that have to do with the Constitution. It is also the highest court in the land since its decisions cannot be changed by any other court.
When you are not satisfied with what the High Court has decided you can go to the Constitutional Court only if it has to do with constitutional issues. Normal appeal matters are however dealt with at the Supreme court of Appeal.
Supreme Court of Appeal
The Supreme Court of Appeal is based in Bloemfontein in the Free State. Except for the Constitutional Court, it is the highest court in South Africa and it only deals with cases sent to it from the High Court.
Except for the Constitutional Court, no other court can change a decision of the Supreme Court of Appeal. Only the Supreme Court of Appeal can change one of its own decisions. Three to five judges listen and decide on all cases of the Supreme Court of Appeal. The final decision of the Supreme Court of Appeal is the one supported by most of the judges listening to the case.
Then there are High Courts which used to be called “The Supreme Courts”. They listen to any case which is too serious for the Magistrate’s Court or when a person or organization goes to the court to change a decision of a Magistrate’s Court, which means appealing a case.
Cases of the High Court are listened to by one judge, meaning a person with many years of practical experience. But if it is a case on appeal, then at least two judges must hear the case.
Sometimes if the case is about a very serious crime then a judge and two experienced people in law who are usually advocates or magistrates who have retired, will listen to the case. The two people are called assessors. Even if there are assessors, the judge does not have to listen to what they believe, but they usually help the judge make a decision.
The High Court divisions have “jurisdiction” – the right to hear a case – over defined provincial areas in which they are situated, and the decisions of the High Courts are binding on Magistrate’s Courts within their areas of jurisdiction. They usually only hear civil matters involving more than R100 000, and serious criminal cases. They also hear any appeals or reviews from lower courts (Magistrates’ courts) which fall in their geographical jurisdiction. The High Court usually hears any matter involving a person’s status (for example, adoption, insolvency etc.).
Important officers in a High Court Division:
- The Registrar of the High Court - The functions of a registrar are mainly administrative. The registrar also has semi-judicial duties, e.g. issuing civil process (summonses, warrants, subpoenas) and so on. Other important duties of the registrar are that of taxing-master for that particular High Court division. Registrars also compile case lists, arrange available courts, lend assistance to judges in general and keep records.
- The Family Advocate- The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship of children. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.
- The Master of the High Court- The Master's Branch is there to serve the public in respect of:
- Deceased Estates;
- Liquidations (Insolvent Estates);
- Registration of Trusts;
- Tutors and Curators; and
- Administration of the Guardian’s Fund (minors and mentally challenged persons).
- The Sheriff of the court - The Sheriff is an impartial and independent official of the Court appointed by the Minister of Justice and Constitutional Development who must serve or execute all documents issued by our courts. These include summonses, notices, warrants and court orders.
- The Directors of Public Prosecutions - are responsible for all the criminal cases in their provinces, so all the prosecutors are under their control. The police bring information about a criminal case to the Director of Public Prosecutions or his/her represenatative prosecutors. The Director of Public Prosecutions or his/her representative prosecutorthen decides whether there is a good reason to have a trial and whether there is enough information to prove in court that the person is guilty.
- The State Attorney - The State Attorney's Division of the Department of Justice functions like an ordinary firm of attorneys, except that its clients are the different departments of government and not private individuals. The state attorney's major function is to protect the interests of the State by acting for all government departments and administrations in civil cases, and for officials sued in their official capacity.
There are at the moment fourteen provincial divisions of the High Court. The present fourteen provincial divisions of the High Court are situated in:
- Eastern Cape High Court (Bhisho)
- Free State High Court (Bloemfontein)
- Western Cape High Court (Cape Town)
- KwaZulu- Natal High Court (Durban)
- Eastern Cape High Court (Grahamstown)
- South Gauteng High Court (Johannesburg)
- Northern Cape High Court (Kimberley)
- KwaZulu-Natal High Court (Pietermaritzburg)
- Eastern Cape High Court (Port Elizabeth)
- North Gauteng High Court (Pretoria)
- Limpopo High Court (Thohoyandou)
- Eastern Cape High Court (Mthatha)
- North West High Court, Mafikeng (Mmabatho) and
- Polokwane Circuit Court of the North Gauteng High Court, Pretoria
Circuit Courts are also part of the High Court. They are sit at least twice a year, moving around to serve more rural areas. They can be contacted through the High Court.
Special Income Tax Courts
The Special Income Tax Courts sit within provincial divisions of the High Court and consists of a judge of the High Court assisted by an accountant of not less than 10 years’ standing, and a representative of the business community. This court deals with any disputes between a taxpayer and the South African Revenue Service, where the dispute involves an income tax assessment of more than R100 000. Appeals against its decisions are made directly to the Supreme Court of Appeal. Tax disputes involving an assessment of less than R100 000 go to the Tax Board. The Tax Board is chaired by an attorney, advocate or accountant who works in the private sector and is specifically appointed by the President to assist as chairman of the Board. You can contact the Special Income Tax Court through the High Court and the Tax Board through the South African Revenue Service.
Labour Courts and Labour Appeal Courts
At present there also exist Labour Courts and Labour Appeal Courts. The Labour Courts have the same status as a High Court. The Labour Courts adjudicates matters relating to labour disputes between an employer and employee. It is mainly guided by the Labour Relations Act which deals with matters such as unfair labour practices for example dismissing an employee without giving notice. The Labour Court can order an employer or employee or union to stop committing an unfair labour practice. It can give jobs back to employees who have lost their jobs unfairly, and so on. The Labour Appeal Court hears appeals against decisions in the Labour Court and this is the highest court for labour appeals.
Previously there were three stand-alone Divorce Courts (Central, North Eastern and the Southern Divorce Court) which heard divorce related matters exclusively. These courts were integrated into the Regional Civil Jurisdiction by the Jurisdiction of Regional Courts Amendment Act, 2008 (Act 31 of 2008). There is now concurrent jurisdiction between with the 63 Regional seats and their relevant High Courts. This initiative facilitates greater access to courts to hear divorce matters and the parties can now choose the court that is closest to the area where they live to initiate divorce related matters.
Land Claims Court
The Land Claims Court specializes in dealing with disputes that arise out of laws that underpin South Africa’s land reform initiative. These are the Restitution of Land Rights Act, 1994, the Land Reform (Labour Tenants) Act, 1996 and the Extension of Security of Tenure Act, 1997. The Land Claims Court has the same status as the High Courts. Any appeal against a decision of the Land Claims Court lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The Land Claims Court can hold hearings in any part of the country if it thinks this will make it more accessible and it can conduct its proceedings in an informal way if this is appropriate, although its main office it in Randburg.
The Water Tribunal
The Water Tribunal is an independent body which has jurisdiction in all the provinces and consists of a chairperson, a deputy chairperson, and additional members. It has jurisdiction over water disputes. Members of the Water Tribunal must have knowledge in law, engineering, water resource management or related fields of knowledge. They are appointed by the Minister on the recommendation of the Judicial Service Commission, the body which chooses judges. The Water Tribunal replaced the Water Court in 1998. You can contact the Water Tribunal through the High Court.
Truth and Reconciliation Commission (TRC)
The Truth and Reconciliation Commission (TRC) was not a court as such but a different kind of forum set up to deal with political crimes committed during apartheid. The Amnesty Committee had the power to grant amnesty (which means the perpetrator cannot be prosecuted) for politically motivated crimes fully and truthfully confessed, under certain conditions. The Human Rights Violation Committee decided on acts which constituted violations of human rights, based on statements made to the TRC. Once victims of gross human rights violations are identified, they were referred to the Reparation and Rehabilitation Committee, which decides on how to compensate victims. The work of the TRC is almost complete. Those who were not granted amnesty by the TRC for crimes committed during apartheid can be prosecuted.
The Magistrates’ Courts are the lower courts which deal with the less serious criminal and civil cases. They are divided into regional courts and district courts. In Criminal Courts the state prosecutes people for breaking the law. Criminal Courts can be divided into two groups:
- Regional Magistrate's Courts
- Ordinary Magistrate's Courts (also called District Courts)
The Regional Magistrates’ Courts at present only deal with criminal cases whereas the district Magistrates’ Courts deal with criminal and civil cases. The magistrate makes the decisions in a Magistrate's Court sometimes with the support of lay assessors.
Magistrate's Courts can be divided into either criminal courts or civil courts.
The Regional Magistrates’ Courts deal with more serious cases than the ordinary Magistrates’ Courts - for example, murder, rape, armed robbery and serious assault.
In terms of the Criminal Law (Sentencing) Amendment Act (No 38 of 2007) a Regional Magistrate’s Court can sentence a person who has been found guilty of offences that include murder or rape to imprisonment for life. The Court can also sentence people who have been found guilty of certain offences such as armed robbery or stealing a motor vehicle to prison for a period up to 20 years. A Regional Magistrate’s Court can impose a maximum fine of R300 000.
The district courts try the less serious cases. They cannot try cases of murder, treason, rape, terrorism, or sabotage. They can sentence a person to a maximum of 3 years in prison or a maximum fine of R100 000.
The ordinary Magistrates’ Courts can hear civil cases when the claims are for less than R100 000. They cannot deal with certain matters, such as:
- arguments about a person's will;
- matters where it is asked if a person is mentally sane or not.
The most serious criminal matters are heard in the High Court. There are also a number of magistrates’ courts that are specialised to be better able to deal with certain types of matters, such as the children’s courts, sexual offences courts, etc.
Small Claims Courts
Small Claims Courts have jurisdiction to hear any civil matter involving less than R 12 000 (unless both the person suing and the person being sued agree to limit the claim to less R12 000). But some cases cannot be taken to the Small Claims Court even if they are for R12 000 or less. Examples of these claims are:
- matters concerning a will
- malicious prosecution
- wrongful imprisonment
- breach of promise to marry
There is no magistrate or judge in the Small Claims Court, but the presiding officer is a Commissioner who is usually a practicing advocate or an attorney who acts as a commissioner free of charge. The Commissioner listens to both sides and asks all the questions since you cannot use a lawyer in the Small Claims Court, but you can get advice from a paralegal or a lawyer to prepare for your case.
No appeal may be filed against the judgment or order of the Small Claims Courts. The court proceedings may however be referred to the High Court for review on three grounds, namely: absence of jurisdiction by the court; interest in the cause, bias, malice or corruption on the part of the commissioner and gross irregularity with regard to the proceedings. You can contact your nearest Small Claims Court through your nearest Magistrate’s Court.
These courts can be described as “district courts” that deal with the same cases as normal magistrate’s court the difference being that they only deal with petty crimes such as shoplifting cases, petty theft, petty gambling offences, petty traffic offences, drunkenness, drinking in public, riotous behaviour, failure to comply with a lawful instruction of a police officer, various train-related offences, common assault etc.
The Community Courts should also not be confused with the traditional courts in rural areas which assist in resolving less serous disputes. There are three Community Courts that have been established in the Western Cape namely: Mitchell’s Plain Cape Town and Fezeka (Gugulethu). The court practices a restorative justice approach and many diversion and alternative sentencing options are available.
The accused is assessed as soon as possible (usually within 48 hours of arrest) to decide on suitability for diversion from the criminal justice system. Legal Aid attorneys are available on request.
Equality Courts have been set up to help someone who believes that they have suffered unfair discrimination, hate speech or harassment. These courts make sure that it is easy for someone with such a case to bring their case to the court and that the issue is finalised quickly.
Anyone can take a case to the Equality Court, even if you are not directly involved in what happened. This means a complaint to the court can be made against someone or an organisation you believe have failed to respect the rights of another person.
The Equality Courts deal with complaints that are about unfair discrimination, hate speech or harassment. If you believe you or someone was treated badly because of hatred or bias based on one of the following:-
- marital status
- ethnic or social origin
- colour of your skin
- sexual orientation
- religion, conscience & belief
- HIV status, or perceived status
- economic or social status or
- family responsibility and status
You can take your complaint to your nearest Equality Court. The establishment of the Equality Courts seeks to achieve the expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings, and also seeks to ensure access to justice to all persons in relevant judicial and other dispute resolution forums.
Child Justice Courts
Prior to 1 April 2010, children who committed crime were dealt with, in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977) which also deals with adults who commit crime. The aim of the CJA is to set up a child justice system for children in confl ict with the law. This means that children under the age of 18, who are suspected to have committed crime, will not be dealt with in terms of the normal criminal procedure which is used for adults, but the child justice process will be followed. The CJA seeks to ensure that child justice matters are managed in a rights-based manner and to assist children suspected of committing crime to turn their lives around and become productive members of society by engaging with the child in restorative justice measures, diversions and other alternative sentencing options...more
The Maintenance Court is situated in the Magistrate's Court. Mothers or fathers who do not get support for their children from the other parent can go there to claim maintenance from that parent.
There is a Maintenance Officer in charge of the Maintenance matter. It is not necessary to have an attorney to claim maintenance. The Maintenance Officer will help you to fill in the necessary forms.
If one of the parents of the child refuses to pay maintenance then the case must go to the Maintenance Court. If so, the Maintenance Officer will give details on when to appear in court and which court to go to.
Sexual Offences Courts
As part of responding to the problem of sexual offences, special sexual offences courts are set up across the country. They are built in such a way that children and victims get the necessary care, respect and support at the court.
For example, there is a waiting room to make sure that the woman or the child who is a victim of e.g. rape, does not come in contact with the person accused. Toys are also available to make sure a relaxed atmosphere is created for a child. In some cases television is used to make sure that evidence by the victim in given in a comfortable way.
The other programmes that is also implemented is that it is now made easier for victims to lay a charge by opening a case at a one-stop centre called a Thuthuzela Care Centre which is at a hospital.
Children’s Courts have been established for circumstances where for example, a person or parent has the responsibility to look after the daily needs of a child (child custody). That means they will provide a home for the child, feed and support them, look after their daily needs and make sure they get an education...more
Courts for Chiefs and Headmen
These courts have jurisdiction to hear certain matters on the level of magistrate’s courts. They are designed to deal with customary issues in terms of customary law. An authorized African headman or his deputy may decide cases using indigenous law and custom (for example, disputes over ownership of cattle or lobolo), brought before him by an African against another African within his area of jurisdiction. These courts are commonly known as Chief’s Courts. A person with a claim has the right to choose whether to bring a claim in the chief’s court or in a magistrate’s court. Anyone who is not satisfied with the decision in a chief's or headman's court can take their matter to the ordinary courts.
Legal Aid South Africa
Legal Aid South Africa is an autonomous body established by the Legal Aid Act (Act 22 of 1969) and the Legal Aid Act (Act 20 of 1969). The objective of Legal Aid South Africa is to render or make available legal representation to indigent persons at State expense as contemplated in the Constitution of the Republic of South Africa (Act 108 of 1996), which affords every citizen access to justice. This means that Legal Aid is provided by Legal Aid South Africa to persons who cannot afford it in terms of a means test (eg earning less than R5000). See more information on the legal aid system and how to access legal aid on their website: http://www.legal-aid.co.za/