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Chapter 5 - COURTS AND COURT CASES

Structure of the courts

Section 34 of the Bill of Rights in our Constitution says everyone has the right to have any legal problem or case decided by a court or an independent body.

The courts are used to make people obey the law. They do this by deciding disputes brought to them.

The ordinary courts are:

• Constitutional Court
• Supreme Court of Appeal
• High Courts
  • High Courts in different provinces
  • local divisions, for example Witwatersrand Local Division
• Magistrate's Courts
  • Regional Magistrate's Courts
  • Ordinary Magistrate's Courts
• Small Claims Courts
• Community courts and courts of Chiefs and Headmen

Courts that deal with special kinds of cases:

• Labour Appeal Court: deals with appeals from the Labour Court
• Labour Court: deals with disputes under the Labour Relations Act
• Land Claims Court: deals with land claims and land tenure issues
• Family Courts: deal with family matters, like divorce (fall under Regional Courts)
• Maintenance Courts
• Juvenile Courts
• Children’s Courts
• Tax Courts
• Water Tribunal
• Equality Courts
• Chiefs and headmen’s courts: deal with customary law matters; anyone dissatisfied with the decision in a chief's or headman's court can take their matter to the ordinary courts.

Statutory Bodies

These are bodies that have the authority to assist in resolving legal disputes. These bodies are established in terms of legislation and get their authority from legislation. It is usually cheaper to use these bodies than the courts and disputes are resolved much faster.

• CCMA established in terms of Labour Relations Act
• Housing Rental Tribunal established in terms of Housing Rental Act
• Pension Funds Adjudicator established in terms of the Pension Funds Act

THE DIFFERENT COURTS IN SOUTH AFRICA AND APPEAL OR REVIEW PROCEDURES

The Constitutional Court

The Constitutional Court is in Braamfontein, Johannesburg and it is the highest court in South Africa. It deals only with constitutional issues.

There are 11 Constitutional Court judges but cases only need to be heard by at least 8 of the judges.

No other court can change a judgment of the Constitutional Court. Even parliament cannot change the decisions of the Constitutional Court. If the Constitutional Court makes a decision that says a law must be amended or it cannot be passed because it is unconstitutional, Parliament can decide to change the law in order to make it constitutional.

The Supreme Court of Appeal

The Supreme Court of Appeal is in Bloemfontein in the Free State. Except for the Constitutional Court, this is the highest court in South Africa. It only hears APPEALS from the High Court.

All cases in the Supreme Court are heard by three or five judges.

Except for the Constitutional Court, no other court can change a judgment of the Supreme Court of Appeal. Only the Supreme Court of Appeal can change one of its own decisions. But if parliament does not like the way the Supreme Court of Appeal  interprets a law, then parliament can just change that law (if the majority vote for this).

The High Courts

The High Courts can hear any type of criminal or civil case. The High Courts usually hear all the cases that are too serious for a Magistrate's Court. It also hears appeals and reviews against judgments in the Magistrate's Court.

Cases in the High Courts cost more money.

All cases in the High Courts are heard by judges. In civil cases usually only one judge hears the case. But if the case is on appeal then at least two judges must hear the case.

In criminal cases only one judge hears the case. Sometimes in very serious criminal cases the judge appoints two assessors to help a judge. Assessors are usually advocates or retired magistrates. They sit with the judge during the court case and listen to all the evidence presented to the court. At the end of the court case they give the judge their opinion. The judge does not have to listen to the assessors' opinions, but it usually helps the judge to make a decision.

The Judicial Services Commission recommends who should be appointed as judges to the President, who then appoints judges. Judges are paid by the state.

Where are the High Courts?

• High Courts:

• Local Divisions:

Appeals and reviews from a High Court

To appeal against a court's decision means to ask a higher court to consider the evidence again and see whether the lower court was wrong in its decision. If a matter is being appealed, new evidence will not be allowed.  If your case was decided by only one judge, you can also appeal to have the matter considered again in the same court by three judges, called a full bench.

If you want to appeal against a decision of a High Court to the Supreme Court of Appeal, you must first get permission to appeal from that High Court. This permission is called 'leave to appeal'. For example, if your case was heard in the KwaZulu-Natal High Court, then you must apply to the same High Court for leave to appeal to the Supreme Court of Appeal.

If this permission is refused, you can ask the Supreme Court of Appeal itself for permission to appeal.

The right to appeal is not an automatic right. Sometimes the judge will not give permission for you to take the case on appeal.

See What is an appeal?

If you think that the proceedings in the High Court were unfair or not according to the law, you can ask for a review. Reviews happen automatically in certain circumstances. In other cases, you have to ask for a review.

See What is a review?

Magistrate's Courts

These are the lower courts that deal with the less serious criminal and civil cases. The Regional Magistrate’s courts deal with both civil and criminal matters and have recently been given jurisdiction to deal with divorce cases. The District Magistrate’s courts deal with criminal and civil cases. The magistrate makes the decisions in a Magistrate's Court sometimes with the support of lay assessors.  Most magistrate’s courts can hear Equality Court cases, These are cases where you feel you have been discriminated against or harassed or subject to hate speech.

Magistrate's Courts can be divided into either criminal courts or civil courts.

See Chart: The Courts in South Africa and appeal and review procedures

Criminal Courts

In Criminal Courts the state prosecutes people for breaking the law.

Criminal Courts can also be divided into two groups:

• Regional Magistrate's Courts
• Ordinary Magistrate's Courts (also called District Courts)

Regional Magistrate's Courts

The Regional Magistrate's Courts deal with more serious crimes than the ordinary Magistrate's 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 Magistrates Court can impose a maximum of R300 000.

Ordinary Magistrate's Courts

These courts try the less serious crimes. 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.

Juvenile Courts

A juvenile is a child under the age of 18 years. Children accused of crimes are normally tried in the ordinary criminal Magistrate's Courts but in the larger cities, special Magistrate's Courts are set aside as Juvenile Courts. Court cases involving juveniles are not open to the public (called in camera) and if possible the parents should be present.

Sometimes during the trial of a juvenile the court might send the child to the Children's Court. This will happen if the court thinks that the child's parents or guardian may be unfit or unable to look after the child, or if there are no parents or guardian. If the Children's Court decides that the parents are fit and able to look after the child, then the case is referred back to the criminal court and the trial will continue. If the Children's Court finds that there are no parents or guardian, or that the parents or guardian are not fit or able to look after the child properly, then the court may order that the child be removed to a 'place of safety'. If the child is transferred from the criminal (juvenile) court to the Children’s Court, the criminal trial must wait until the Children’s Court comes to a decision.

See FAMILY LAW AND VIOLENCE AGAINST WOMEN, Removing children from abuse or neglect.

Civil Courts

Regional Courts

In the past Regional courts could only deal with criminal law cases. In order to make the courts more accessible to people it was decided to extend the jurisdiction of Regional Courts to include civil matters.

Regional Courts may now hear the following matters

• Divorces and issues stemming from divorces
• Disputes over movable and immovable property between R100 000 to R300 000
• Credit agreements of between R100 000 to R300 000
• Road accident fund claims between R100 000 to R300 00

The ordinary Magistrate's Courts can hear civil cases when the claims are for less than R100 000. They cannot deal with certain matters, such as:

• divorce
• arguments about a person's will
• matters where it is asked if a person is mad or sane

Maintenance Courts

The Maintenance Court is situated in the Magistrate's Court. A parent who does not receive maintenance from the other parent can approach the Maintenance Court to make an application for Maintenance There is a Maintenance Officer in charge of the Maintenance Court. 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.

If the  parent is unable to pay maintenance for the child, an application can be made to claim maintenance from the  that person’s parents.

If the complainant has a maintenance order, and the other parent has defaulted in paying the maintenance in terms of the order, then the complainant should report the  matter to the Maintenance Court. If the matter has been reported to the Maintenance Court and cannot be resolved, it will be sent to the Criminal Court. The Maintenance officer will inform you about all the procedures that should be followed. When the matter is at the Criminal Court a prosecutor will be appointed to deal with it. The prosecutor will then prosecute the defaulting party. The matter will then proceed as a criminal case.

See FAMILY LAW AND VIOLENCE AGAINST WOMEN, PROBLEM 4: Getting maintenance through the Maintenance Court.

Family courts

The Family Court combines issues of maintenance, children (custody and guardianship), and divorce. These courts are being pilot-tested in different parts of the country. If there is no Family Court in your area, you will still have to use the High Court.

See FAMILY LAW AND VIOLENCE AGAINST WOMEN, Family courts
See FAMILY LAW AND VIOLENCE AGAINST WOMEN, Problem 1: Getting a divorce

Children's Courts

Every district (ordinary) magistrate’s court also acts as a Children’s Court and has jurisdiction on any matter arising from the application of the Children’s Act (No 38 of 2005). 

The Children’s Court can decide on cases that involve-

• the protection and well-being of a child;
• the care of, or contact with, a child;
• paternity of a child;
• support of a child;
• the provision of-
  • early childhood development services; or
  • prevention or early intervention services;
• maltreatment, abuse, neglect, degradation or exploitation of a child;
• the temporary safe care of a child;
• alternative care of a child;
• the adoption of a child, including an inter-country adoption;
• a child and youth care centre, a partial care facility or a shelter or drop-in centre
• any other matter relating to the care, protection or well-being of a child
  provided for in the Children’s Act.

See Summary of the Children’s Act.

Equality courts

Equality courts have been established in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (also called the 'Equality Act') to hear cases about unfair discrimination, hate  speech or harassment (but not discrimination in the workplace, which is dealt with by the Labour Courts). There are  382 Equality Courts based in magistrate’s courts.  The Department of Justice website: www.doj.gov.za  (Click on ‘Equality Courts’) has the contact details for all the magistrates’ courts where there is an Equality Court. They will have powers to conciliate and mediate, grant interdicts, order payment of damages or order a person to make an apology.

Any person or an association, acting on its own behalf  or on behalf of others can bring a case to the Equality Court. For example, a non-governmental organisation (NGO) can bring a case on behalf of the public. You are entitled to bring a case to the Equality Court if you feel the bad treatment you or someone else received was due to someone discriminating against you on one of the following grounds:

• race
• gender 
• sex 
• pregnancy
• marital status (which includes life partnerships as well as single persons)
• ethnic or social origin)
• colour
• sexual orientation
• age
• disability
• religion, conscience & belief
• culture
• language or
• birth

It is not necessary to have an attorney to bring a case to the Equality Court. The Equality Court Clerk will assist you to fill in the necessary forms and take the necessary follow-up action.

Community courts and 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.

Appeals and reviews from a Magistrate's Court

If you are involved in a criminal or civil case in a Magistrate's Court, you can ask the High Court to look at the decision of the Magistrate's Court and decide whether it was correct. This is called an appeal. You ask the High Court to change the decision of the Magistrate's Court.

If you want to appeal against a decision of a Magistrate's Court, you must first get permission to appeal from that Magistrate's Court. This permission is called 'leave to appeal'. For example, if your case was heard in the Wynberg Magistrate's Court, then you must apply to the same Magistrate's Court for leave to appeal to the High Court. If this permission is refused, you can ask the High Court itself for permission to appeal. The right to appeal is not an automatic right. Sometimes the magistrate or judge will not give permission for you to take the case on appeal.

If you think that the proceedings in the Magistrate's Court were unfair or not according to the law, you can bring the case to the High Court. This is called a review.

Reviews happen automatically in certain circumstances, for example, when an accused represented himself in the criminal trial. In other cases, you have to ask for a review.

See Trials, appeals and reviews.

Small Claims Courts (SCCs)

SCCs are situated in the magistrate’s courts. If there is no SCC in your area, you must bring your case in the Magistrate’s Court. The SCC is easier and cheaper for people to use to settle disputes. The court charges a small fee to cover the cost of the summons and the fee of the Sheriff of the Court. A Commissioner presides over the proceedings and decides who is right and who is wrong. You cannot use an attorney in the SCC but you can get advice from a paralegal or an attorney to prepare for your case in the SCC.  You can only use the SCC for claims up to a value of R 12 000. If you claim is for more than R12 000 you can give up part of the claim so that it is R12 000 or less. 

See Small Claims Court.

The Labour Court

The Labour Court is a special court for hearing labour cases that fall under the Labour Relations Act. So this court is used only for matters between employers and employees or employees' unions.  The Labour Court interprets all the labour laws. It says which things are unfair labour practices and deals with automatically unfair dismissals - for example dismissing a worker for exercising a legal right under the Labour Relations Act.. It can order an employer or worker 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.

Many cases must go to the CCMA (Commission for Conciliation Arbitration and Mediation) before the Labour Court. The CCMA deals with constructive dismissals and dismissals for misconduct. The CCMA has a procedure that can speed the process up called a “conarb” . This is where is does the conciliation (trying to find a mediated and agreed settlement) and then an arbitration (where the CCMA makes a ruling).

The Labour Court hears reviews of CCMA decisions, dismissals based on discrimination and dismissals for large retrenchments. The Labour Appeal Court hears appeals against decisions in the Labour Court and this is the highest court for labour appeals.

See Adjudication by the Labour Court.

The 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, Communal Land Rights Act 11 of 2004 and the Extension of Security of Tenure Act, 1997. The LCC  has the same status as the High Courts. Any appeal against a decision of the LCC lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The LCC 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.

Who works in the legal system?

Judges

Judges are appointed by the President. Judges hear and decide cases in the Constitutional Court, Supreme Court of Appeal and High Courts.

Assessors

In serious criminal cases in the High Courts, two assessors are appointed to help the judge. Assessors are usually advocates or retired magistrates or experts in a particular area such as children. They sit with the judge during the court case and listen to all the evidence presented to the court. At the end of the court case they give the judge their opinion. The judge does not have to listen to the assessors' opinions but it usually helps the judge to make a decision.

Master of the High Court

The Master's Branch of the High Court is there to serve the public in respect of:

• Deceased Estates
• Liquidations (Insolvent Estates)
• Registration of Trusts
• Tutors and Curators
• Administration of the Guardian's Fund (minors and mentally challenged persons)

Magistrates

Magistrates are appointed by the Minister of Justice. They hear and decide cases in the Magistrate's Courts.

Lay assessors

Lay assessors are recruited through community organisations, so that the organisations can identify people who are respected by their communities. They are given basic training on legal procedures, but are not trained as attorneys nor magistrates. They help the magistrate reach a fair decision by providing background information to the issues in a case and giving the broader community perspective.

Director of Public Prosecutions

At each High Court, there is a Director of Public Prosecutions (DPP) with a staff of assistants. (DPPs used to be known as Attorney Generals.) The DPPs are appointed by the Minister of Justice.

The DPPs are responsible for all the criminal cases in their province, so all the prosecutors are under their control. The police bring the information about a criminal case to the DPP. The DPP then decides whether there is good reason to have a trial, if there is enough information to prove in court that the person is guilty.

National Director of Public Prosecutions

The office of the National Director of Public Prosecutions, was established on 1 August 1998, in terms of section 179(1) of the Constitution.

The National Director of Public Prosecutions (NDPP) is in charge of the National Prosecuting Authority (NPA) which is responsible for managing the performance of Directors of Public Prosecutions (DPPs), Special Directors and other members of the Prosecuting Athority

See National Prosecuting Authority.

Each High Court has a Director of Public Prosecutions (DPP) with a staff of assistants. The DPPs are responsible for all the criminal cases in their province, so all the prosecutors fall under their control. The police bring the information about a criminal case to the DPP. The DPP then decides whether there is enough evidence for a trial and to prove in court that the person is guilty.

Prosecutors

Prosecutors are employed by the National Prosecuting Authority. The prosecutor represents the state in a criminal trial against people who are accused of committing a crime. Before the trial, the prosecutor works with the South African Police Services to find out all the facts about the case, and to prepare state witnesses who saw what happened or who have other information. The prosecutor decides whether to prosecute the case or not.

The prosecutor then presents all this information in court and tries to convince the judge or magistrate that the accused person is guilty. The prosecutor does this by asking the state witnesses to tell their stories. The prosecutor also cross-questions the witnesses that the accused person brings to court, to try and disprove what these witnesses say. The prosecutor may divert cases to rehabilitate, especially juvenile first offenders.

Attorneys and advocates

Every person is entitled to appear personally before a court to plead a cause or to raise a defence. However due to the complexity of legal issues and the specific manner in which court applications have to be submitted to the court, It is sometimes best to hire an attorney and advocates.

See Using an attorney.

Public defenders

If a person who is accused in a serious criminal case cannot afford to pay for their own attorney, their case will be taken up by a public defender. Public defenders are attorneys who are paid for by Legal Aid South Africa. The aim of Legal Aid South Africa is to make legal representation available to poor and indigent people at the government’s expense.

Paralegals or advice-givers

Para-legals are people who have had non-degree training or informal training so they cannot act in formal legal proceedings. They give advice to people and organisations on different aspects of the law, including advice on their rights and ways of protecting their rights.

Trials, appeals and reviews

What is a trial?

A trial is a court hearing in a Magistrate's Court or a High Court, called the trial court.

The magistrate or judge listens to all the people who have information about the case. This information is called the verbal or oral evidence. The court also looks at the physical evidence, for example, a knife or a letter. These are called exhibits in the trial.

The magistrate or judge listens to the evidence from both sides. If it is a criminal trial, the magistrate or judge listens to the state and its witnesses as well as the case of the accused and the witnesses called by the accused. The magistrate or judge then makes a decision, called a judgment.

See Summary of steps in a criminal court case.

What is an appeal?

If you lose a trial, you can appeal. This means you ask a higher court to change the decision of the trial court.

Usually this appeal court will not listen to any new evidence. It will only read the report from the lower court to see what evidence was given. So it is very important to say everything you want to say in the first court that hears your case.

A case in the Magistrate's Court can go on appeal to the nearest High Court, and then to the Supreme Court of Appeal. A case heard in a High Court can go directly on appeal to the Supreme Court of Appeal. The Supreme Court of Appeal only listens to appeals - it does not listen to any trials.

See Chart: The courts in South Africa and appeal or review procedures.
See Appeals and reviews from a High Court.
See Appeals and reviews from a Magistrate's Court.
See Taking a judgement on review (in a Small Claims Court).
See Adjudication appeals (in a Labour Court).

What is a review?

A higher court can also be used for a review. If you think proceedings in a Magistrate's Court or High Court were unfair (for example, the magistrate or judge was biased), or not according to the law, you can take the case on review to a higher court.

Automatic review

An automatic review – where you don’t ask for the review yourself – takes place in the following circumstances:

• In a criminal case, a judge will review your case automatically if you do not have a lawyer, and the sentence is more than 6 months in prison or the fine more than R10 000. That means the judge will decide if the magistrate made the right judgment according to the law.
• If you do not have a lawyer in a criminal case, and your sentence is more than 3 months in prison or a fine of more than R5 000, AND you are sentenced by a magistrate who has worked for less than seven years as a magistrate, then your case will also automatically be reviewed by a judge.

Asking for a review

If you think things did not happen in the right way in the court, then you yourself can ask for a review. This means you can ask for a review if you think that the court procedures were unfair or irregular.

For example:

• you may think that the magistrate or the judge did not give you a proper chance to explain yourself clearly
• you may think that the judge or the magistrate was against you even before the case was finished

If you ask for a review, you must give the courts papers to show why you feel the judgment should be reviewed. You will probably need a lawyer to help you.

Outcome of the review

The higher court may change the judgment, or may correct the procedures, or may say that there must be a new trial.

Settling disputes outside courts

Many legal problems can be settled without going to court and this is usually a much cheaper option for settling disputes. Different ways oftrynig to solve disputes without going to any of the courts include:

• negotiation
• mediation
• arbitration

See PROBLEM 1: Which court should be used in each example? (numbers 7-9).

Negotiation

Negotiation means that people who have a problem talk to each other about their problem and try to solve it by coming up with a solution which suits both sides.

See PARALEGALS AND ADVICE OFFICES, Negotiation skills.

Mediation

Mediation happens when people with a problem agree to have a third person act as a go-between to help them settle their problem. For example: two neighbours who are always fighting about the noise coming from each other's houses can bring in a mediator who will help them reach a compromise.

The mediator does not act as a judge and does not make a decision which the parties must follow.  

See PARALEGALS AND ADVICE OFFICES, Mediation.
See Conciliation by the CCMA or Bargaining Council.

Arbitration

Arbitration takes place when people who have a problem agree to have a third person (called an arbitrator) to listen to their arguments and make a decisionwhich both parties agree in advance to follow. So the arbitrator acts like a judge. An arbitration is quicker and less formal than a court case.

See PARALEGALS AND ADVICE OFFICES, Arbitration.
See Arbitration by the CCMA or Bargaining Council.