<--- Back to contents Chapter 3 - Court CasesProblems
PROBLEM 1: Which court should be used in each example?
1. Mary is caught shoplifting a cheap dress in a shop. She will be arrested and charged in the criminal court of the ordinary Magistrate's Court in the area where she shoplifted thedress. Shoplifting is stealing, and it is a criminal offence. See Ordinary Magistrate's Court 2. John is charged with raping a woman. John will be charged in the criminal court of the Regional Magistrate's Court or the High Court in the area where he committed the crime. Rape is a very serious criminal offence and cannot be heard in the ordinary Magistrate's Court. See Regional Magistrate's Court The woman that John raped can also sue John privately for damages in the civil court of the ordinary Magistrate's Court. But if her claim is for more than R100 000, she will have to sue through the High Court. See Criminal and civil actions 3. Pedi murders his wife. Pedi will be charged with murder in the High Court in the province where he committed the murder. Murder is a very serious criminal offence and cannot be heard in the ordinary or regional Magistrate's Court. 4. Mxolisi buys a second-hand TV from a shop in town. He pays R800 for the TV. When he gets home he finds after a day that it stops working. The shop refuses to refund his money. Mxolisi has a private civil claim against the shop. If there is a Small Claims Court in this town then Mxolisi can use this Small Claims Court. The law says the Small Claims Court can be used for claims that are R3 000 or less. If there is no Small Claims Court in the town, then Mxolisi must use the ordinary Magistrate's Court to claim his money back from the shop. This is more expensive and takes longer than the Small Claims Court. See What can you use the Small Claims Court for? 5. Jeremy buys a car from a garage in Cape Town for R35 000. The car breaks down three days later. He will have to fit a reconditioned engine to the car to get it going again. Jeremy has a private civil claim against the garage. He must sue the garage through the civil courts in the ordinary Magistrate's Court in Cape Town. 6. Themba and Bheki live in a village in KwaZulu-Natal. They quarrel about who owns certain cows. This is a civil dispute. They can use the chief's or headman's court in the area in which they live, or they can use the ordinary Magistrate's Court. See Customary law
See Ordinary Magistrate's Court 7. Cheryl is dismissed from her job because she arrives late one morning. She says that this is unfair because she has been working there for seven years and this is the first time that she has been late. The employer refuses to reinstate her. Cheryl can go to the Commission for Conciliation, Mediation and Arbitration for help. If the CCMA cannot solve the problem, they will refer the matter to the Labour Court for judgment. See LABOUR LAW, Solving disputes under the LRA 8. Benny signs a contract with a painter to paint his house 'to his own satisfaction' for an agreed sum of money. When the painter has finished, he asks Benny to pay him. Benny refuses because he says that 'any fool' can see that the house needs another coat of paint before the job can be called complete. The painter refuses to paint another coat. If both Benny and the painter agree then they can call in a third person to act as a mediator between them. It will be better if this third person is a professional person in the building trade. This will usually be the quickest and cheapest way to solve the problem. See Mediation But if this fails, then the painter can refer the civil claim to the Small Claims Court or the Magistrate's Court to get his money from Benny. 9. The Civic Association in Kliptown is unhappy because there are no street lights in a large section of the town. They say they are paying high rates and have a right to street lights. The municipality keeps saying that it is doing something about this but nothing ever happens. The Civic should send a delegation to the Municipality and demand that the Municipality speak to them about their complaint. The two sides should enter into negotiations to try and sort out the problem. See Negotiation
See PARALEGALS AND ADVICE OFFICES, Negotiation skills
PROBLEM 2: Claim is too large for the Small Claims Court
You have a claim against Tape and Radio Wholesalers for R3 200. Can you use the Small Claims Court to get your money back? What are your rights?If you want to claim this full amount you cannot use the Small Claims Court. The law says that you can only use the Small Claims Court if your claim is for R3 000 or less. If you want to claim R3 200, you must use the Magistrate's Court. The Magistrate's Court is much more expensive and also takes more time than the Small Claims Court to sort out problems. You can always reduce your claim to R3 000, if you want to use the Small Claims Court. You will lose R200, but it means you can now bring your claim in the Small Claims Court. You would have spent the R200 on lawyers' fees in the Magistrate's Court in any case. See What can you use the Small Claims Court for? What can you do?If you decide to reduce the claim so that you can use the Small Claims Court, then you must follow the procedures of the Small Claims Court. See Summary of the steps in a Small Claims Court
PROBLEM 3: How urgent is the need for an interdict? Pedi will be charged with murder in the Regional court or the High Court in the area or province where he committed the murder. Murder is a very serious offence and cannot be heard in the ordinary Magistrate’s court. What are the community's rights?The question here is whether the community can show that the need to stop the police from conducting the raids is urgent enough to get an interdict. The case will be urgent enough for an interdict if the community can prove that there is a good chance the police will raid again very soon. What can they do?See Steps in getting an interdict The community must approach a lawyer to help them with the interdict. There are many things that the community can do to help the lawyer, such as: - collecting statements from people whose houses were raided
- finding out what goods were confiscated by the police
- finding out whether anybody was assaulted in the raid
- getting details of how many times the police have raided in the past 3 months, what they confiscated in those raids, and so on
See Problems with interdicts
PROBLEM 4: Passing the Legal Aid means test
Maria Shave is a single person with two children who go to school. She earns R1 200 per month before deductions are made from her salary. She pays R100 into a pension fund every month and her bond repayment on her house is R200 per month. Will she qualify for Legal Aid? What are her rights?The means test says a single woman earning R600 can get Legal Aid. For every dependent child you can add on R180 to the R600. For purposes of the means test a person's salary is the money that is left after deductions are made for things like pension, housing, medical aid and so on. See Means test Does she qualify for Legal Aid?Maria has two dependants, so she is entitled to add on to the basic R600: R180 x 2 children = R360 So the means test for a single person plus 2 dependent children is R600 + R360 = R960. For the purposes of the means test, Maria's salary will be R1 200 less R100 (pension) less R200 (bond repayment): R1 200 - R100 - R200 = R900 Maria is earning only R900, which is less than the R960 means test. She will therefore qualify for Legal Aid.
PROBLEM 5: Appealing against the decision of a magistrate
James Mbengu lives on a farm. One day his wife was very ill and he ran to town to call a doctor. On the way he ran across another farm owned by Mr Nel. Mr Nel called the police and Mr Mbengu was arrested and charged with tresspassing. Mr Mbengu appears before the criminal court. The magistrate finds him guilty of tresspass. What are his rights?Mr Mbengu says it was impossible to get to the doctor any other way. He could not help running across Mr Nel's farm. It was not his fault that he was breaking the law. He wants to appeal against the decision of the magistrate. The law says you can appeal to a higher court if you think that the trial court (in this case the Magistrate's Court) made a mistake in interpreting the facts of the case or didn't apply the law correctly. See What is an appeal? What can he do?Mr Mbengu must get a lawyer to help him with his appeal against the magistrate's judgment. The lawyer must draw up legal documents for an appeal. Mr Mbengu can go to the Legal Aid office to apply for Legal Aid to pay for the lawyer. See Legal Aid
PROBLEM 6: Failing to obey a civil court order
Joe Snyders assaulted his brother Richard. Richard suffered some bad wounds and he had to spend 3 days in hospital recovering. When he leaves hospital, he finds that he has lost his job. He is also told that his account at the hospital is R1 000 for medical fees. Richard sues his brother in the civil court for an amount of R3 500, which includes medical fees, lost wages, and pain and suffering. He wins his case in court and the court orders Joe to pay the amount claimed by Richard plus all Richard's legal costs. Joe just ignores the court order and tells Richard that he refuses to pay because it was all Richard's fault in any case. What are Richard's rights?The court has already decided that Joe owes Richard the money. Because Joe refuses to pay, Richard will have to spend more time and money on a lawyer trying to get his money back. What can he do?Richard will have to go back to his lawyer. The lawyer will apply for a Warrant of Execution on behalf of Richard. A Sheriff of the Court will then go to Joe's house and take some of his property. The Sheriff will sell the property and pay Richard. See Enforcing a civil judgment
PROBLEM 7: Refusing to give your name or address to the police
The police raid your house. They say they suspect that the bicycle they find in your house is a stolen bicycle. They ask you for your full name and address. You refuse to give it to them. They then arrest you and take you to the police station. What are your rights?The law says the police must take you to court as soon as possible after the arrest up to a maximum of 48 hours. You were arrested at 5 p.m. on Wednesday afternoon. If you count 48 hours after this time, it will be 5p.m.on Friday afternoon. The court is closed at this time and for the rest of the weekend so you cannot appear in court. You would then appear on the first court day after this which will be the following Monday. BUT, you could argue that any policeman who tells you at 5 p.m. on Wednesday that you will only appear in court on the following Monday is already telling you that she or he will not be trying to get you to court as soon as possible. This could be an abuse of your rights. Before you give the police your name you can ask to see the identity documents of the police officers. If the police refuse to show their IDs, you need not give your name and address. In this case the police SUSPECTED THAT YOU COMMITTED A CRIME. So you were supposed to give them your name and address. Because you refused, they are allowed to arrest you. You can get a fine of R2 500 or 3 months in prison for refusing to give your name or address. See Powers of the police to question What can you do?You must give the police your name and address. You do not have to say anything else. If you have a lawyer you must ask to see your lawyer. If you have no lawyer contact a member of your family, a friend, or someone from the nearest advice office. See What to do if you are arrested You can ask your family to apply for Legal Aid for you. See Legal Aid Ask the police for police bail. If the police do not give you bail, you must ask for bail as soon as you are charged in court. See Police bail
PROBLEM 8: Police shoot and injure while making an arrest
The police suspected two men Paul and Lundi of being car thieves. One afternoon the police were driving through the streets of Botshabelo. They saw a pink Mazda parked outside a house, with the two suspects sitting inside. The registration number was the same as the number on a car reported stolen two days before. The police stopped and got out to arrest the men. But the two men jumped out of the car and tried to run away. The police ran after the men and called out to them to stop, but the men did not stop. The police pulled out their guns, fired a warning shot and then shot the men in their legs. Then they arrested the men. What are their rights?The police found Paul and Lundi in the stolen car. The law says that a police officer can arrest you without a warrant if they catch you while you are committing a crime. See Arrest without a warrant They were caught in the act. So the police did not have to give a reason why they wanted to arrest the suspects. This was a lawful arrest. See Making a lawful arrest The law also says that the police can use force to make an arrest if the suspect tries to fight or run away. But the law says that police must use as little force as possible. If they shoot, they must try to shoot just to stop the person, not to kill. The amount of force must be just enough to stop you fighting or running away. The police in this case could not stop Paul and Lundi without shooting them. So the use of force was lawful. See Using force to make an arrest or to stop you escaping from arrest What can they do?If the police ask Paul and Lundi to give them their names and addresses, they must do this. They do not have to say anything else. Paul and Lundi must ask to see a lawyer. If they don't know a lawyer, then they must contact a member of their families, a friend or someone from the nearest advice office to find a lawyer or to apply for Legal Aid for a lawyer. They must ask to see a doctor immediately to treat their injuries. They must ask for court bail as soon as they appear in court. See Court bail
PROBLEM 9: Your right to appear in court within 48 hours of arrest
You are arrested at 5 pm on a Wednesday afternoon. The police tell you that you will only be appearing in court on the following Monday. This means that you will have to spend the weekend in jail. What are your rights?The law says that the police must take you to court within 48 hours after your arrest. You were arrested at 5 pm on Wednesday afternoon. If you count 48 hours after this time, it will be 5 pm on a Friday afternoon. The court is closed at this time and for the rest of the weekend. So you cannot appear in court. You must appear on the first court day after this. This will be the following Monday. See Rights of arrested people What can you do?As soon as you get to the police station ask to see your lawyer. If you don't know a lawyer, then ask to contact a member of your family, a friend or someone at the nearest advice office to get a lawyer for you. You must ask for police bail. See Police bail If the offence is not too serious, then the police will probably let you out on police bail. If the offence is very serious and the police refuse to give you police bail, then you must stay in jail until you appear in court on the following Monday. When you get to court, you must ask for court bail. See Court bail
Problem 10: Police misconduct
The police arrest you after they catch you shoplifting a shirt from the local department store. They take you to their van waiting outside. On the way to the police station they ask you questions about what happened. You refuse to answer their questions. Two of the police assault you. What are your rights?The law says that you only have to give the police your name and address. You do not have to say anything else to the police. So you did not have to answer the questions that the police officer asked you in the van. The law says that if you do not try to fight or run away, the police cannot use force to make the arrest. In this case, you did not resist the arrest. So the use of force was unlawful. As soon as you get to the police station, ask to see your lawyer or to telephone someone you know to arrange a lawyer for you. Ask to see a doctor immediately. In this example, you can sue the Minister of Safety and Security for the use of unlawful force against you, and you can make a criminal charge against the individual police who assaulted you. If the police: - unlawfully search you or your premises
- arrest you unlawfully
- use unlawful force when arresting you
- refuse to give you your rights once you are arrested
- do not bring you to court within 48 hours after your arrest, or on the first possible court day if the 48 hours ends on a weekend or a public holiday
then you can sue the police to pay you compensation. This is a civil claim against the police. Unless you were resisting arrest and the police used a lawful amount of force, the police may not abuse, torture, assault, shoot, sexually assault or rape you when they question you, search you or your premises, arrest you, or try to get you to make a statement. If they do, you can sue the police to pay you compensation in a civil claim, and you can lay a criminal charge against the police. See Powers of the police to question
See Powers of the police to search and seize
See Powers of the police to arrest
See Rights of arrested people See BILL OF RIGHTS AND CONSTITUTION, Section 35: Arrested, detained and accused persons Independent Complaints Directorate (ICD) This is an independent body set up by the government to investigate serious cases of police misconduct. If someone has been seriously injured or killed by the police, you must contact the ICD for help. You must also complain to the ICD about police corruption, or other serious complaints about police behaviour. You can ask at any police station or Magistrate's Court how to contact the ICD. There should be an office in each SAPS region. Making a civil claim against the police You bring a claim against the Minister of Safety and Security for a sum of money. This is also called suing. The Minister is responsible for police officers if they commit an offence 'in the course and scope of their duties' (in other words, while they are on duty or as part of their police work). You will only sue the individual police officer who acted unlawfully, if that officer was off duty at the time or if the action was not a part of his or her police duties. For example, your neighbour is a police officer. One night, out of anger, he arrests you because you are making too much noise. The arrest was not a part of his police duties. He was acting as an individual. So you would sue the police officer himself and not the Minister of Safety and Security. Another reason for suing the Minister is because you are more likely to get the money you are claiming from the Minister than from individual police officers who might not have much money. If you want to make a civil claim against the police, you must: - get help from a lawyer
- make the claim before 12 months have passed from
- the date of the event
or - the date when you should have become aware of the event whichever is the later date
- give the police 1 month's notice that you are going to sue them
So your lawyer must first write to the police to say that you are going to make a case against them and why you are making a claim. The notice must reach the police within 11 months. Then you must wait 1 month from the date that the notice reached the police, before starting the case. If you bring the claim after 12 months have passed or if you haven't given the police 1 month's notice, the court may still hear your claim if you can prove to the court that it is in the interests of justice for your claim to be heard. Laying a criminal charge against the police - If you are at the police station, ask to see your lawyer. If you have no lawyer, ask to telephone a member of your family, a friend, or someone at the nearest advice office to arrange a lawyer for you.
- If you are raped or injured, you must see a doctor as soon as possible after the assault.
The doctor will treat your injuries and will make a medical report, which will be used in the criminal case against the police. If you are not in jail you can go to your own private doctor or a government doctor. If you are in jail, you must ask to see a doctor immediately. You will see a district surgeon, who is a government doctor. Ask for the doctor's name and remember it, or write it down. Ask the doctor to write down all your injuries.
- Make a statement to a paralegal or lawyer as soon as possible. They will help you to lay a charge against the police officer(s) who assaulted you.
- If you are charged, then as soon as you get to court, you must tell the magistrate or judge that you were assaulted. If the police refused to get you a lawyer or a doctor, you must also tell the magistrate or judge this. Then these things are written down in the court record, and will be part of the evidence.
- Follow the usual procedure to lay a criminal charge.
See How do you make a criminal case against someone else? What to do if a person was killed by the police - Contact the ICD and get hold of a lawyer without delay. The ICD will investigate the case.
- In the meantime, you can get statements about what happened from any witnesses to the killing. Keep these statements for the lawyer and ICD. Statements can be made directly to the ICD investigator. It is better if no-one makes a statement to the local police until they have spoken to the lawyer or ICD investigator. But if anyone did make statements to the police, you must tell the lawyer and ICD.
- Ask the lawyer to make sure as quickly as possible that a private doctor representing the family of the dead person examines the body.
- When all statements have been typed and signed, and handed to the ICD, a criminal charge may be investigated. If you know the names of the killers, there is a chance that someone will be charged.
- If there is no charge, an inquest should be held. This is a special kind of trial where a magistrate decides what the cause of death was and whether anyone is to blame. If the killers are identified by name during the inquest, they should be criminally charged after the inquest.
- Whatever happens with the ICD investigation and criminal charges, you can still make a civil claim against the Minister of Safety and Security.
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