Confused about the courts in South Africa This document explains South Africa's court structure, and has contact details for the courts as well as links to their decisions online?
The Constitutional Court is the highest court in South Africa. It has the final say on all matters relating to the Constitution of South Africa. Its decisions on the constitution are binding on all other courts. There are eleven judges who stand guard over the Constitution and protect everyone's rights. The head of the Constitutional Court is Chief Justice Sandile Ngcobo, the Deputy Chief Justice is Judge Dikgang Moseneke. This court came into existence in 1994.
When you are not satisfied with the outcome of a High Court decision, you can go to the Constitutional Court only if it has to do with constitutional issues. Normal appeal matters are however dealt with at the Supreme Court of Appeal.
You can also visit the constitutional court website at www.constitutionalcourt.org.za for further information.
The Supreme Court of Appeal is based in Bloemfontein, which is the Judicial Capital of South Africa. It is the highest court which has the final say on all matters, except those that involve the constitution. For example, all criminal appeal cases from the High Court end up in this court, unless the appeal relates to a point of constitutional law, in which case the Constitutional Court has the final say. The Supreme Court of Appeal used to be called "The Appellate Division", as it only hears cases on appeal.
Except for the Constitutional Court, no other court can change a decision of the Supreme Court of Appeal as it's decisions are binding on all courts of a lower order. Three to five Judges listen and decide on all cases of the Supreme Court of Appeal. The final decision of this court is the one supported by the majority of the judges listening to the case. The President of the Supreme Court of Appeal is the Honourable L. Mpati and the Deputy President is the Honourable L. Harms.
You can also visit the Supreme Court of Appeal website at www.justice.gov.za/sca/ for further information.
The High Courts of South Africa used to be called "The Supreme Courts". They listen to any case which is too serious for the Magistrate's Court or when a person or organisation goes to the court to change a decision of a Magistrate's Court, which means appealing a case.
Cases of the High Court are listened to by one judge, meaning a person with many years of practical experience. But if it is a case on appeal, then at least two judges must hear the case.
Sometimes if the case is about a very serious crime then a judge and two experienced people in law who are usually advocates or magistrates who have retired, will listen to the case. The two people are called assessors. Even if there are assessors, the judge does not have to listen to what they believe, but they usually help the judge make a decision.
The High Court divisions have "jurisdiction" - the right to hear a case - over defined provincial areas in which they are situated, and the decisions of the High Courts are binding on Magistrate's Courts within their areas of jurisdiction. They usually only hear civil matters involving more than R100 000, and serious criminal cases. They also hear any appeals or reviews from lower courts (Magistrates' courts) which fall in their geographical jurisdiction. The High Court usually hears any matter involving a person's status (for example, adoption, insolvency etc.).
The functions of a registrar are mainly administrative. The registrar also has semi-judicial duties, e.g. issuing civil process (summonses, warrants, subpoenas) and so on. Other important duties of the registrar are that of taxing-master for that particular High Court division. Registrars also compile case lists, arrange available courts, lend assistance to judges in general and keep records.
The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship of children. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties' circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.
o Tutors and Curators; and o Administration of the Guardian's Fund (minors and mentally challenged persons).
The Sheriff is an impartial and independent official of the Court appointed by the Minister of Justice and Constitutional Development who must serve or execute all documents issued by our courts. These include summonses, notices, warrants and court orders.
are responsible for all the criminal cases in their provinces, so all the prosecutors are under their control. The police bring information about a criminal case to the Director of Public Prosecutions or his/her represenatative prosecutors. The Director of Public Prosecutions or his/her representative prosecutorthen decides whether there is a good reason to have a trial and whether there is enough information to prove in court that the person is guilty.
The State Attorney's Division of the Department of Justice functions like an ordinary firm of attorneys, except that its clients are the different departments of government and not private individuals. The state attorney's major function is to protect the interests of the State by acting for all government departments and administrations in civil cases, and for officials sued in their official capacity.
There are at the moment fourteen provincial divisions of the High Court.
Tel: 021 480 2411.
You can read the decisions of the court here.
Circut Courts are also part of the High Court. They sit at least twice a year, moving around to serve more rural areas. They can be contacted through the High Court.
The Special Income Tax Courts sit within divisions of the High Court and consists of a judge of the High Court assisted by an accountant of not less than 10 years' standing, and a representative of the business community.
This court deals with any disputes between a taxpayer and the South African Revenue Service, where the dispute involves an income tax assessment of more than R100 000. Appeals against its decisions are made directly to the Supreme Court of Appeal. Tax disputes involving an assessment of less than R100 000 go the Tax Board.
The Tax Board is chaired by an attorney, advocate or accountant who works in the private sector and is specifically appointed by the President to assist as chairman of the Board. You can contact the Special Income Tax Court through the High Court and the Tax Board through the South African Revenue Service.
The Labour Courts have the same status as a High Court. The Labour Courts adjudicates matters relating to labour disputes between an employer and employee. It is mainly guided by the Labour Relations Act which deals with matters such as unfair labour practices for example dismissing an employee without giving notice. The Labour Court can order an employer or employee 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. The Labour Appeal Court hears appeals against decisions in the Labour Court and this is the highest court for labour appeals.
You can contact the Labour court through the High Court or by visiting the Labour Courts website.
Divorce Courts hear any matters relating to divorce. There are three such courts, the Central, North Eastern and Southern Divorce Courts, and they are designed to deal with less complicated divorces quickly and inexpensively. The Southern Divorce Court is the divorce court that has jurisdiction in the Western Cape, and it has offices at the Family Court Centre in Cape Town and a satellite office in Mitchell's Plain. You can contact the Family Court Centre through the Cape Town Magistrate's Court. (It is envisaged that these courts' functions will come to an end at the end of July 2010, as these functions will be moved to the Regional Courts when their civil jurisdiction comes into operation).
The Land Claims Court specialises 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 and the Extension of Security of Tenure Act, 1997. The Land Claims Court has the same status as the High Courts. Any appeal against a decision of the Land Claims Court lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The Land Claims Court 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, although its main office it in Randburg.
You can get Land Claims Court judgments here.
The Water Tribunal is an independent body which has jurisdiction in all the provinces and consists of a chairperson, a deputy chairperson, and additional members. It has jurisdiction over water disputes. Members of the Water Tribunal must have knowledge in law, engineering, water resource management or related fields of knowledge. They are appointed by the Minister on the recommendation of the Judicial Service Commission, the body which chooses judges. The Water Tribunal replaced the Water Court in 1998. You can contact the Water Tribunal through the High Court.
was not a court as such but a different kind of forum set up to deal with crimes related to politics committed during apartheid. The Amnesty Committee had the power to grant amnesty (which means the perpetrator cannot be prosecuted) for politically motivated crimes fully and truthfully confessed, under certain conditions. The Human Rights Violation Committee decided on acts which constituted violations of human rights, based on statements made to the TRC. Once victims of gross human rights violations are identified, they were referred to the Reparation and Rehabilitation Committee, which decides on how to compensate victims. The work of the TRC is almost complete. Those who were not granted amnesty by the TRC for crimes committed during apartheid can be prosecuted.
The Magistrates courts are the lower courts which deal with the less serious criminal and civil cases. They are divided into regional courts and district courts. In Criminal Courts the state prosecutes people for breaking the law.
o The Regional Magistrates' Courts at present only deal with criminal cases whereas the district Magistrates' Courts deal with criminal and civil cases. The magistrate makes the decisions in a Magistrate's Court sometimes with the support of lay assessors.
o Ordinary Magistrate's Courts can be divided into either criminal courts or civil courts. The Regional Magistrates' Courts deal with more serious cases than the ordinary Magistrates' 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 Magistrate's Court can impose a maximum fine of R300 000.
The district courts try the less serious cases. 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.
The ordinary Magistrates' Courts can hear civil cases when the claims are for less than R100 000.
matters where it is asked if a person is mentally sane or not.
The most serious criminal matters are heard in the High Court. There are also a number of magistrates' courts that are specialised to be better able to deal with certain types of matters, such as the children's courts, sexual offences courts, etc. You can view a list of Magistrate's Courts in the Western Cape here.
Small Claims Courts have jurisdiction to hear any civil matter involving less than R 7 000 (unless both the person suing and the person being sued agree to limit the claim to less R7 000). But some cases cannot be taken to the Small Claims Court even if they are for R7 000 or less.
There is no magistrate or judge in the Small Claims Court, but the presiding officer is a Commissioner who is usually a practicing advocate or an attorney who acts as a commissioner free of charge. The Commissioner listens to both sides and asks all the questions since you cannot use a lawyer in the Small Claims Court, but you can get advice from a paralegal or a lawyer to prepare for your case.
No appeal may be filed against the judgment or order of the Small Claims Courts. The court proceedings may however be referred to the High Court for review on three grounds, namely: absence of jurisdiction by the court; interest in the cause, bias, malice or corruption on the part of the commissioner and gross irregularity with regard to the proceedings. You can contact your nearest Small Claims Court through your nearest Magistrate's Court.
These courts can be described as "district courts" that deal with the same cases as normal magistrate's court, the difference being that they only deal with petty crimes such as shoplifting cases, petty theft, petty gambling offences, petty traffic offences, drunkenness, drinking in public, riotous behaviour, failure to comply with a lawful instruction of a police officer, various train-related offences, common assault etc.
The Community Courts should also not be confused with the traditional courts in rural areas which assist in resolving less serous disputes. There are three Community Courts that have been established in the Western Cape namely: Mitchell's Plain Cape Town and Fezeka (Gugulethu). The court practices a restorative justice approach and many diversion and alternative sentencing options are available.
The accused is assessed as soon as possible (usually within 48 hours of arrest) to decide on suitability for diversion from the criminal justice system. Legal Aid attorneys are available on request.
Equality Courts have been set up to help someone who believes that they have suffered unfair discrimination, hate speech or harassment. These courts make sure that it is easy for someone with such a case to bring their case to the court and that the issue is finalised quickly.
Anyone can take a case to the Equality Court, even if you are not directly involved in what happened. This means a complaint to the court can be made against someone or an organisation you believe have failed to respect the rights of another person. The Equality Courts deal with complaints that are about unfair discrimination, hate speech or harassment.
You can take your complaint to your nearest Equality Court. The establishment of the Equality Courts seeks to achieve the expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings, and also seeks to ensure access to justice to all persons in relevant judicial and other dispute resolution forums.
You can visit www.doj.gov.
Limpopo; Gauteng; Mpumalanga; North-West; Northern Cape; Western Cape; Eastern Cape; Free State and Kwazulu-Natal.
The child justice system tries to make sure that children under the age of 18 years do not commit a crime at all. If it is believed they have committed one and a case is opened against them, the law must deal with them looking at their age. This might sometimes be about not going to court, but finding another way to understand and change the child.
If they are found guilty of the crime the most important thing should be to try find a way that makes sure they return to their community changed in a way that will make sure they will not repeat the crime.
The child justice system is also about protecting communities from children who do crime, but it wants it done in a way that is different from how the criminal justice system works for example it says that if a child is arrested they must be assessed by someone called a probation officer before they appear in court. Even though it is like the child coming to court for the first appearance, at this time questions asked are about understanding the child and what caused what happened, its called inquisitorial in nature. The outcomes can be for the case to go through a process different from the courts. For example the child can accept they have done what it is said they did and there would be no trial, but just sentencing of the crime done.
Police are also encouraged not to put children in jail, unless there is nothing else they can do.
If found guilty a child's sentence can be to do work for the community, paying back the person wronged or being sent to a child or youth centre which focuses on changing children who have committed crimes and others. Sending a child to jail must be the last option and if done, must be for the shortest time possible.
Also important to know is that anyone under the age of eighteen (18) is a child and a child of fourteen (14) years or younger cannot be send to jail. Children of ten (10) years and younger cannot commit a crime since they are not expected to be able to tell the difference between wrong and right.
The Maintenance Court is situated in the Magistrate's Court. Mothers or fathers who do not get support for their children from the other parent can go there to claim maintenance from that parent.
There is a Maintenance Officer in charge of the Maintenance matter. 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.
As part of responding to the problem of sexual offences, special sexual offences courts are set up across the country. They are built in such a way that children and victims get the necessary care, respect and support at the court.
For example, there is a waiting room to make sure that the woman or the child who is a victim of e.g. rape, does not come in contact with the person accused. Toys are also available to make sure a relaxed atmosphere is created for a child.
In some cases television is used to make sure that evidence by the victim in given in a comfortable way.
The other programmes that is also implemented is that it is now made easier for victims to lay a charge by opening a case at a one-stop centre called a Thuthuzela Care Centre which is at a hospital.
Children's Courts have been established for circumstances where for example, a person or parent has the responsibility to look after the daily needs of a child (child custody). That means they will provide a home for the child, feed and support them, look after their daily needs and make sure they get an education.
The decision about who gets child custody is sometimes decided by a court, in the case where the parties are not agreeing.
Children are called legitimate if they are born to married parents, or their parents marry later. Children born outside of marriage are called illegitimate.
In the past, illegitimate children were treated fair by the law and society. But today's law makes sure that a child does not get blamed because their parents chose not to be married. For every child, no matter if they are legitimate or illegitimate, the law and court will look at what is the best thing for the child. That is how decisions about things like child custody are made.
The person who has custody is normally also the child's guardian, which means looking after what belongs to the child, for example money or property they receive from someone or somewhere. Such a person also signs contracts for the child, including going to court for the child as well as agreeing to the child getting married before 18 years of age. The mother of an illegitimate child is the "natural" guardian, but this can be changed by a court.
In the case of an illegitimate child, a father cannot make decisions as a parent about the life of their child, but must, in terms of the law, support the child. He can also not see the child if and when he wants of the mother does not agree.
But remember that we said that a court can decide to change all of this if it believes it is in the interest of the child. That means the father can always go to court to get child custody and guardianship.
Adoption is a way for a grown up person or people to get custody and guardianship over a child. This is done at a children's court by anyone who is close or can show that they are interested in the child growing up in a safe and positive way. It can be the father, married people, a single person or family.
But also very important to know is that if the parents are not married, the mother must first get permission of the natural father before giving away their child for adoption.
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 authorised 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 Chiefs 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.