South African Court system. Introduction to legal studies.

1. South African Court System
2021
Ms K Mokoena

2. INTRODUCTION

3. 3
•s165 OF CONSTITUTION: JUDICIAL
AUTHORITY
• The judicial authority of the Republic
is vested in the courts.
• independent
• subject only to the Constitution,
legislation and common law,
• apply impartially and without
fear, favour or prejudice.
• No person or organ of the state may
interfere with the functioning of the
courts.
• doctrine?
General Principles

4. 4
•S 165 OF CONSTITUTION: JUDICIAL
AUTHORITY
• Organs of state, through legislative
and other measures, must assist and
protect the courts to
• ensure the independence,
impartiality, dignity, accessibility
and effectiveness of the courts.
• An order or decision issued by the
court binds all persons and organs of
state to which it applies
General Principles

5. 5
“Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair public
hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.”
Section 34 – Access to Courts

6. 6
1. To rationalise, consolidate and amend legislation with regard to all courts
in a single Parliamentary act;
2. To amalgamate all the Superior Courts into one “Supreme Court of South
Africa” that has several divisions;
3. To administer judicial functions of all courts;
4. To oversee administrative and budgetary matters of all Superior Courts;
5. To bring structure of Courts in line with Chapter 8 of the Constitution
(under the Constitution Seventeenth Amendment Act); and
6. To establish the Chief Justice as chief of the bench.
Objectives of the Superior Courts Act 2013

7. JURISDICTION

8. 8
•Authority of a court to hear a
particular matter
•Inherent Jurisdiction – s173
oEach court has the inherent power,
oby taking into account the interests of
justice,
oto protect and regulate their own
process and
oto develop the common law.
Jurisdiction

9. 9
Jurisdiction - Appeal and Review
Appeal Review
o Court erred in judgment.
o Leave to appeal.
o Court a quo.
o On appeal:
 Oral evidence about facts?
 Typed record of court a quo –
evidence.
 Arguments of legal
representatives.
o Uphold appeal/overrule appeal.
o Possible irregularities in procedure
during hearing.
o Application for review.

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o Can court hear a specific case for the first time?
o Jurisdiction of court (appeal and court of first instance) is
affected by:
1. Geographical area and
2. Type of case.
Jurisdiction – Court of First Instance

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o We have to ask:
o Where cause of action arose
o Where parties are
o Supreme Court of Appeal and Constitutional Court Jurisdiction:
 Whole geographical area of SA.
o High Court of South Africa:
 Various seats around the country
o Magistrates Courts
 Regional and District
Jurisdiction – Geographical Area

12. 12
• Eastern Cape Division  Grahamstown;
• Free State Division  Bloemfontein;
• Gauteng Division  Pretoria and
Johannesburg
• KwaZulu-Natal Division  Pietermaritzburg;
• Limpopo Division  Polokwane;
• Mpumalanga Division  Nelspruit;
• Northern Cape Division  Kimberley;
• North West Division  Mahikeng;
• Western Cape Division  Cape Town.
Jurisdiction – Seats of the High Court

13. 13
• Criminal case: nature of crime + possible sentence.
• Civil case: amount that is claimed + nature of required
legal aid.
•These factors will determine whether a matter is heard in
•Magistrates Court or High Court
•If Magistrates Court:
• Regional or
• District
Jurisdiction – Types of Matters

14. 14
• S 167(7) of the Constitution:
Interpretation, protection or
enforcement of the
Constitution.
• Alleged invasion of human
rights.
• Competence/validity of action
of organs of state.
• Constitutional validity of
legislation/legal rules.
Jurisdiction – Constitutional Matters

15. CONSTITUTIONAL COURT

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•Seat: Johannesburg.
•Jurisdiction = entire
geographical area of SA.
•Appointment of judges: Judicial
Service Commission
Constitutional Court

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•Highest court of THE REPUBLIC;
•Jurisdiction over the following:
• Constitutional matters; and
• Any other matter, if the CC grants
leave to appeal on the grounds that
the matter raises an arguable point
of law of general public importance
which ought to be considered by
that Court.
• It decides what is within its
jurisdiction
Constitutional Seventeenth Amendment Act 2012 S 167(3):

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•Disputes between organs of state in the national or provincial sphere;
•Constitutionality of any parliamentary or provincial Bill (after it has been
referred by the President/premier of province to CC);
•Constitutionality of any parliamentary or provincial statute (referred by
members of National Assembly and Provincial legislature);
•Constitutionality of any amendment to the Constitution;
•Question whether Parliament or President has failed to fulfil a constitutional
obligation;
•Certifying a provincial constitution.
Exclusive Constitutional Court Jurisdiction

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S 167(5) [also 172(2)(a)]: The Constitutional
Court makes the final decision on
questions about:
• An act of Parliament,
• A provincial Act, or
• Whether conduct of the President
is constitutional, and
• No order of invalidity made by
Supreme Court of Appeal, the
High Court of South Africa, or a
court of similar status, has any
force unless this order is
confirmed by the Constitutional
Court..
Declarations of Constitutional Invalidity

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•DIRECT ACCESS S 167(6):
o National legislation or the rules of the Constitutional Court must
allow a person to, when it is in the interests of justice and with leave
of the Constitutional Court
• To bring a matter directly to the Constitutional Court; or
• To appeal directly to the Constitutional Court from any
• other court.
• COURT OF FIRST INSTANCE:
1. Exclusive jurisdiction;
2. Public interest/urgency;
3. Interest of justice.
Constitutional Court as a Court of First Instance

21. SUPREME COURT OF APPEAL

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• Established in 1910 (formerly: Appellate
Division)
• Seat – Bloemfontein
• Presidential appointment on advise of
Judicial Service Commission.
• Number of judges= 22
• Addressing the judge: Justice (surname)
e.g. Justice Maya (JP)
• Registrar = administration
• Has jurisdiction within ENTIRE
geographical area in South Africa
• Functions only as a court of appeal and
NEVER AS COURT OF FIRST INSTANCE
General

23. HIGH COURTS

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o Headed by a JUDGE PRESIDENT
o Other presiding officers: deputy judge
president and other judges
o EACH HIGH COURT HAS JURISDICTION
WITHIN PARTICULAR PROVINCIAL AREA
o It can function as APPEAL court AND as a
court of FIRST INSTANCE
o Registrar= administration
o Addressing the judge= My Lord/ My
• Lady
General

25. 25
Jurisdiction of the High Courts
Criminal Civil Constitutional
o High treason =
always in HC
o In practice deals
with serious
crimes= murder,
culpable homicide
etc.
o Imprisonment of
15 years or
more fine more
that R300 000
o If claim amount more
than R 100 000 must
be instituted in HC
o If claim for specific
damages WITHOUT
DAMAGES IN THE
ALTERNATIVE, must be
instituted in HC
o Exclusive jurisdiction in
matters such as wills
and presumptions of
death
o Can decide on
constitutional matters
except those falling
within exclusive
jurisdiction of CC
o matters assigned by
parliament
o declare an act of
Parliament, provincial
act or conduct of the
President
unconstitutional
o Subject to CC
Confirmation

26. 26
o Can hear reviews and appeals
from lower courts
o If HC is court of first instance
then APPEAL IN SCA
o Or
o Appeal in same court to full
bench (3 judges) against
decision of single judge
HC – Review and Appeal

27. MAGISTRATES’ COURTS

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o Magistrates’ Courts:
 REGIONAL v DISTRICT
 “creatures of statute”
 Each region and district.
 Addressing a magistrate: “Your
Worship”.
 Clerk = administration
General

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Regional District
• Can try any criminal offence except treason
• Sentences: Life (rape, murder), 20 years
(armed robbery, theft), maximum fine of
R300 000.
• Up to the Director of Public Prosecutions
which court to try an accused in.
• Jurisdiction of Regional Courts Amendment
Act 31 of 2008.
o Regional magistrates’ courts can also
hear divorce matters.
• Criminal
o Less serious crimes
o No sentence more than 3 years
o No fine more that R 60k
• Civil
o Claims of R 100 000 or less
o If for specific performance with
damages in the alternative
o Parties can only consent to
jurisdiction for amount and NOT
NATURE OF CLAIM EG. Wills only
in HC.
• Constitutional
o CANNOT decide on
constitutionality of any legislation
or act of parliament

30. OTHER SPECIAL COURTS AND THE CCMA

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•Special income tax courts.
•Labour courts and labour appeal courts.
•Land Claims Courts.
•The Water Tribunal.
•Truth and Reconciliation Commission.
•Small Claims Courts.
•Equality Courts.
•Maintenance Courts.
•Child Justice Courts.
Other Special Courts

32. 32
• Commission for Conciliation, Mediation
and Arbitration
• Commission for Conciliation, Mediation
and Arbitration.
• Established in terms of the Labour
Relations Act, 1995.
• Independent body.
• Presiding officer: Commissioner.
• Legal representatives can provide legal
advice but not represent clients in
consultation with a commissioner (unless
under certain circumstances).
CCMA

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• Facilitates mediation,
conciliation and arbitration in
the following types of
disputes:
- Workplace based
- Unfair dismissal;
- Unfair discrimination in
the workplace;
- Termination of
employment.
CCMA

34. 34
• All unfair dismissal disputes;
• Constructive dismissals;
• Dismissals for reasons unknown;
• Dismissal of a probationary employee;
• Unfair labour practices;
• Disputes over organisational rights;
• Disputes over or concerning the
interpretation of collective agreements;
and
• Disputes involving the interpretation of
• agency shop or closed shop
agreements
CCMA Exclusive Jurisdiction

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• Why is legal representation generally not permitted?
• legal representation allowed in misconduct or incapacity hearings at the CCMA if:
• The commissioner and all parties consent thereto;
• The commissioner concludes that it is unreasonable to expect a party to deal with the dispute
without legal representation, after considering - under the following circumstances:
• The nature of the questions of law raised by the dispute;
• The complexity of the dispute;
• The public interest; and
• The comparative ability of the opposing parties
• or their representatives to deal with the dispute.
Legal Representation in the CCMA?