Chapter 5 - COURTS AND COURT CASES
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:
Courts that deal with special kinds of cases:
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.
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 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 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.
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.
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.
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.
In Criminal Courts the state prosecutes people for breaking the law.
Criminal Courts can also be divided into two groups:
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.
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.
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.
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
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:
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.
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.
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-
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:
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.
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.
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.
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.
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.
The Land Claims Court
|<--- Previous section|
© This material may not be used for profit without permission from ETU
ETU can not respond to requests for legal advice, contact the organisations listed under Resources.