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Chapter 5 - COURTS AND COURT CASES

Problems

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.

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 Regional Magistrate’s 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 faulty TV

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 R12 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 Small Claims Court.

5. Jeremy buys a car which breaks down

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 quarrel about ownership of cows.

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 Community courts and courts for Chiefs and Headmen.

7. Cheryl is dismissed for being late

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 Solving disputes under the LRA.

8.  Benny is not satisfied with a paint contractor’s work

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.

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.

See Mediation.

9. Community dissatisfaction over lack of access to running water

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. (2008 Version)

PROBLEM 2: Claim is too large for the Small Claims Court (SCC)

You have a claim against Tape and Radio Wholesalers for R13 200. Can you use the Small Claims Court to get your money back?

What does the law say?

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 R12 000 or less.

If you want to claim R13 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 however reduce your claim to R12 000 if you want to use the SCC. You will lose R1 200 but in the long run this may be cheaper than paying attorney’s fees to bring the case in the magistrate’s court.

See Small Claims Courts.

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.

PROBLEM 3: How urgent is the need for an interdict?

The police have conducted a number of raids on various houses in the Nomzamo community. They say they are looking for stolen goods. The community says these raids take place too often and the police never find any stolen goods. People feel the police are trying to intimidate the community. They want to get an interdict to stop raids in the future.

What does the law say?

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 the community do?

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 Steps in getting an interdict.

See Problems with interdicts.

PROBLEM 4: Passing the Legal Aid means test

Maria is a single person with two children who go to school. She earns R5 000 per month before deductions are made from her salary. She pays R200 into a pension fund every month and her bond repayment on her house is R400 per month. Will she qualify for Legal Aid?

What does the law say?

The means test says a single person earning R5 000 can get Legal Aid. This amount is standard for every single person applying for legal aid and doesn’t depend on how many dependents the person has.

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. It is also important that the specific case that she needs the legal aid for, falls within the cases covered by legal aid.

See Means test.

See Applying for legal aid.

Does Maria qualify for Legal Aid?

Maria earns R5 000 per month. For the purposes of the means test, Maria's salary will be R5 000 less (R200 (pension) + R400 (bond repayment)

R5 000 – (R200 + R400) = R4 400

This amount is less than the means test amount of R5 000 which means Maria will qualify for Legal Aid (provided her case is the type of case covered by legal aid.

PROBLEM 5: Appealing against the decision of a magistrate

James lives on a farm. One day his wife was critically ill and he ran to town to call a doctor. On the way he ran across another farm owned by Philip because it was the quickest possible route to the nearest town. Philip caught him and asked him what he was doing on his land. Even after James explained, Philip called the police and told them James was trespassing on his farm. James was arrested and charged with trespass.  He appeared before the criminal court and the magistrate found him guilty. He was sentenced to 6 months in prison. He wants to appeal against this decision.

What does the law say?

James says his wife was critically ill so he took the shortest possible route to town. He said he did not mean to trespass and did not do any damage to the property.  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 Trials, appeals and reviews.

What can he do?

James must get an attorney to help him with his appeal against the magistrate's judgment. The attorney must draw up legal documents for an appeal. James can go to the Legal Aid office to apply for Legal Aid to pay for the attorney.

See Applying for legal aid.

PROBLEM 6: Failing to obey a civil court order

Joe assaulted his brother Richard. Richard suffered some bad wounds and 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 R9 000, 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 does the law say?

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 an attorney trying to get his money back.

What can he do?

Richard will have to go back to his attorney.

The attorney 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 judgement.

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 that if a police officer suspects that you committed a crime, or that you are trying to commit a crime or that you might be able to give them some information about a crime, then they can ask you to give your full name and address.

See Powers of the police to question.

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 or prison sentence for refusing to give your name or address.

What can you do?

You must give the police your name and address. You do not have to say anything else. If you have an attorney you must ask to see your attorney. If you have no attorney contact a member of your family, a friend, or someone from the nearest advice office. You can ask your family to apply for Legal Aid for you.

See What to do if you are arrested.

See Applying for 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 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 does the law say?

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.

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 Making a lawful arrest.

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 an attorney. If they don't know an attorney, then they must contact a member of their families, a friend or someone from the nearest advice office to find an attorney or to apply for Legal Aid for an attorney.

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 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 attorney. If you don't know an attorney, then ask to contact a member of your family, a friend or someone at the nearest advice office to get an attorney for you.
You must ask for 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 Police 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 does the law say?

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.

See Police.

See Section 35 (of the Bill of Rights) Arrested, detained and accused persons.

As soon as you get to the police station, ask to see your attorney or to telephone someone you know to arrange an attorney 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.

What can you do?

Report a case of misconduct to the Independent Police Investigative Directorate ( IPID)

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 IPID for help. You can also complain to the IPID about police corruption, or other serious complaints about police behaviour.
You can ask at any police station or Magistrate's Court how to lodge a complaint with the IPID. There must be an IPID office in each province who must investigate the complaint.

See Reporting a case of police misconduct to the Independent Complaints Directorate.

Make a civil claim against the police

You bring a claim against the Minister of Police 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 Police.

If you want to make a civil claim against the police, you must:

• get help from an attorney
• 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 attorney 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

Make a statement to an attorney as soon as possible regarding the assault made on you by the police officers. The attorney will help you to lay a charge against the police officer(s) who assaulted you. If you are charged, you must tell the magistrate or judge as soon as you get to court that you were assaulted. If the police refused to get you a attorney or a doctor, you must also tell the magistrate or judge this. 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 against the police officers.

See Steps in laying a criminal charge against another person.