CHAPTER 2 – STRUCTURE &

OFFICERS OF THE COURTS

Introduction

GENERAL:

SA courts:
∙ Are well structured
∙ Well organised and
∙ Speak to the diverse needs of society

CONSTITUTION:

S165:
∙ States that judicial authority vests in the courts
∙ Courts must be:
- Independent
- Subject only to the Constitution and the law
- And must apply the Constitution and law impartially and
without fear, favour or prejudice

In terms of the separation of powers doctrine AND S165:

∙ No person OR organ of state may interfere with the functioning
of the courts
∙ State organs must assist and protect the courts in order to ensure
the court’s independence, impartiality, dignity and efficiency
∙ An order of the court binds all persons and organs of State to
which it applies
 Impact of the Constitution on the
Structure, Powers and Functioning of the
Courts

IMPACT:

S8(1) Constitution:
∙ All SA courts are bound by the basic rights contained in the Bill
of Rights

S8(3) Constitution:
∙ All SA courts must give effect to these rights

EFFECT THE CONSTITUTION HAS HAD ON THE LAW OF CIVIL

PROCEDURE:

Locus Standi:
∙ Under the common law any party wanting to institute
proceedings must have had a ‘direct and substantial interest’ in
the right which forms the subject matter of the litigation
∙ However, S38 of the Bill of Rights has widened this locus standi
∙  In an action/application where there is a violation of any of the
rights contained in the Bill of Rights ANYONE can institute
proceedings

Litigation involving State Organs:

∙ Before the new constitutional dispensation there were strict
requirements and reduces prescription periods in which to
institute claims against organs of State
∙ Now: due to the enactment of the Institution of Legal Proceedings
against Organs of State Act of 2002 – these requirements and
prescription periods have been brought in line with the
Constitution
∙  It is now easier to sue an organ of State
 High court rule 17(4):
∙ Stated that every summons must state the names of the parties,
the defendant’s sex and if female, the defendant’s marital status
∙ Nedcor Bank v Hennop the High court held that HCR 17(4), with
reference to the defendant’s sex and marital status, was an
infringement of S9(1)and(3) of the equality clause in the
Constitution

S65 Magistrate’s Court Act:

∙ Relates to debt collection procedure
∙ Used to allow a person to be imprisoned for failure to pay a debt
∙ Coetzee v Government RSA and Matiso case the court held that it
was unconstitutional and S65 has now been redrafted to be line
with the Constitution

Hierarchy of the SA Courts

S166 – SA COURTS:

Constitutional Court
Supreme Court of Appeal
High Court
Magistrate’s Courts (district and regional courts)
Other specialised courts established through statutes

Constitutional Court

GENERAL:

Court is governed by:

∙ Constitutional Court Complimentary Act

Procedures followed in the court are governed by:

∙ Rules of the Constitutional Court
ORIGIN:

Established in 1994 in terms of the Interim Constitution and the CC

Complimentary Act

Why was it established?

∙ To oversee the application and protection of fundamental rights

SEAT AND COMPOSITION:

CC has its seat in Braamfontein, JHB

Court comprises of:

∙ Chief Justice
∙ Deputy Chief Justice
∙ 9 Judges

A matter brought before the CC must be heard by at least 8 judges (ie:

quorum = 8 judges minimum)

Address the presiding officer as “Your Worship”

JURISDICTION OF CONSTITUTIONAL COURT:

Has inherent jurisdiction

There is only 1 CC in SA and has jurisdiction over the whole of SA

S167(3) Constitution states that the CC:

∙ Is the highest court in all constitutional matters
∙ May only adjudicate constitutional issues and issues related to the
decisions of constitutional matters
∙ Is the final-decision-maker on whether a matter is a constitutional
matter and whether an issue is related to the decision on a
constitutional matter

S167 – a constitutional matter:

 ∙ Is any matter relating to the protection, enforcement or
interpretation of the Constitution

S167(4) – CC has exclusive jurisdiction over:

∙ Disputes between organs of states concerning the constitutional
status/competence/duties of these state organs
∙ Constitutionality of any parliamentary/provincial bill (in terms of
S79 or S121)
∙ Order by the National Assembly or a Provincial Council
declaring a part of / or whole Act unconstitutional (in terms of
S80 or S122)
∙ Declaring the constitutionality of any amendment to the
constitution
∙ Matters relating to the conduct of the President
∙ Certify a Provincial Constitution (S144)

All other matters commence in the HC, unless the CC grants an

application for direct access to it

NO order of unconstitutionality by the SCA or HC is valid UNTIL the

CC confirms such an order

 Matters reach the CC when:

∙ On appeal from the SCA
∙ It’s the CC’s exclusive jurisdiction
∙ Confirmation of an order by HC or SCA
∙ Application for direct access

Supreme Court of Appeal

GENERAL:

Court is governed by:

∙ Supreme Court Act of 1959

Procedures followed in the court are governed by:

 ∙ Rules of the Supreme Court of Appeal
∙ Appeal procedure based on record from court a quo

ORIGIN:

Established by the South Africa Act of 1909

∙ Previously known as the Appellate division but changed to SCA
in 1994

SEAT AND COMPOSITION:

SCA has its seat in Bloemfontein

Court comprises of:

∙ President
∙ Deputy President
∙ Judges of Appeal

A matter brought before the SCA must be heard by at least 5 judges

∙ S12 SC Act provides the quorum of judges as 5 for both civil and
criminal matters
∙ Also, decision of the majority = decision of the court
∙ When majority of judges cannot reach agreement – dispute is
brought de novo before a new court composed and determined by
the President of the Court

Address the presiding officer as:

∙ “Justice” if there is 1
∙ “The Court” if there is more than 1

JURISDICTION OF THE SCA:

Highest court of appeal in all matters except constitutional matters

There is only 1 SCA in SA and has jurisdiction over the whole of SA

Not a court of the first instance:

 ∙ Has no original jurisdiction
∙ All its matters must be an appeal or review coming from the HC

High Courts
GENERAL:

Court is governed by:

∙ Supreme Court Act of 1959

Procedures followed in the court are governed by:

∙ Uniform Rules of Court (applicable in all High Courts)

ORIGIN:

Established by the South Africa Act of 1909

Previously known as the Supreme Court but changed to High Court in

1994 due to S166 Constitution

COMPOSITION:

Court comprises of:

∙ Judge-President
∙ As many other judges as the President of RSA appoints upon the
advice of the Judicial Services Commission

A civil matter brought before the HC is normally heard by 1 judge:

∙ Sometimes, when an important question of law is to be
determined the matter can be heard by 3 judges (full bench)
∙ Also, decision of the majority = decision of the court
∙ When majority of judges cannot reach agreement – dispute is
brought de novo before a the court composed

Address the presiding officer as:

∙ “ My Lord” or “My Lordship”
 ∙ “My Lady” or “My Ladyship”

JURISDICTION OF HIGH COURTS:

There are various HC’s in the whole of SA

∙ Renaming of High Courts Act(see SG pg 25)

= A court of the first instance AS WELL AS a court of appeal for

matters from the Magistrate’s Court within its jurisdiction

Appeal matters:
∙ Quorum for a matter of appeal from a MC = 2 judges
∙ When matter in HC is appealed from a single judge’s order – it
will be referred to 3 judges (full bench) when an issue of fact must
be decided and to the SCA when a matter of law is in issue

Has no limit in jurisdiction over civil or criminal matters:

∙ Except when it comes to constitutional matters
∙ Usually entertains civil matters over R300 000 and more serious
criminal matters

Circuit court = travelling HC (travels to rural areas hearing mainly

criminal matters)

Magistrate’s Courts
GENERAL:

Court is governed by:

∙ Magistrate’s Courts Act, 1944

Procedures followed in the court are governed by:

∙ Rules of the Magistrate’s Court

ORIGIN:

Magistrate’s Courts = creatures of statute

 ∙ They have no inherent jurisdiction
∙ MC’s operate within the 4 corners of the Magistrate’s Court Act

COMPOSITION:

Court comprises of at least one Magistrate

District Court comprises of:

∙ Magistrate
∙ Clerk of court (head of administration)

Regional Court comprises of:

∙ Magistrate
∙ Assessors (advisory capacity on questions of fact)
∙ Registrar/assistant registrars

Address the presiding officer as:

∙ “Your Worship”

JURISDICTION OF MAGISTRATE’s COURTS:

= A court of the first instance

MC’s divided into 2 levels:

∙ Regional MC
∙ District MC

DISTRICT COURT:

Almost 500 courts in SA

Each court exercises their jurisdiction over a specific

GEOGRAPHICAL area

Has both criminal and civil jurisdiction:

∙ Civil matters not exceeding R100 000 (unless otherwise agreed by
parties)
 S46 contains specific exclusions:
∙ Wills
∙ Status matters
∙ Specific performance
∙ Perpetual silence

REGIONAL COURT:

Previously these courts did not have jurisdiction over civil matters or
matters of treason – could only hear criminal matters

However, due to the Jurisdiction of the Regional Courts Amendment

Act 2008 – Regional courts were given the power to hear civil matters
∙ Came into force on 9 August 2010

Regional courts now have jurisdiction over the following civil matters:
∙ Family disputes (divorce, maintenance, adoption, custody)
∙ Disputes over movable/immovable property between R100 000 to
R300 000
∙ Credit agreements between R100 000 to R300 000
∙ Road Accident Fund claims between R100 000 to R300 000

Benefits of this legislation:

∙ Reduced time of finalisation of case (more courts to deal with the
matters)
∙ Reduced costs (cheaper than HC proceedings)

Superior Courts Bill

WHAT:

Proposed piece of legislation that has not yet been finalised

AIM:

To rationalise, consolidate and amend the laws relating to the CC,

SCA and HC’s into one piece of legislation
 Specialist courts will become specialist divisions of the High court of
SA

When Bill is approved it will repeal, inter alia, the Supreme Court act,
CC Complimentary Act, certain sections of the Labour Relations Act

Small Claims Court

GENERAL:

Governed by Small Claims Court Act 1984

Purpose of SCC= To make the judicial system less expensive and more
easily accessible to persons who cannot afford HC and MC fees

Sits after ordinary office hours to ensure parties do not lose time and
wages because they have to take leave from work in order to attend
court

Legal representation is NOT allowed

Presiding officer = a commissioner

Plaintiff can only be a natural person

NOT a court of record – therefore cannot appeal decision (as it is not

recorded)

S15 SCC Act – MATTERS COURT MAY ADJUDICATE:

Monetary cap = R12 000 (see TB pg 14)

S16 SCC ACT – MATTERS EXCLUDED FROM COURT’S
JURISDICTION:

Cases relating to dissolution of a marriage or customary union

 Cases relating to the validity/interpretation of a will or testament

Cases relating to mental capacity and status of a person

Cases relating to specific performance without a claim for damages in

the alternative except:
∙ Delivery of an account where claim does not exceed R12 000
∙ Delivery or transfer of movables or immovables where value is
less than R12 000

Cases relating to perpetual silence

Cases where damages is claimed for:

∙ Libel (defamation)
∙ Malicious prosecution
∙ Seduction
∙ Breach of promise to marry

Interdict

S14(2) & S14(4) SCC ACT:

S14(2):
∙ Cannot institute and action against the State in the SCC

S14(4):
∙ SCC has no jurisdiction over matters involving the cession or
transfer of rights

PROCEDURES IN SCC:

S26 SCC Act provides that the rules of the law of evidence do not
apply to the SCC proceedings
Adversial system does not apply to the SCC – it is inquisitorial by
nature (ie: P.O actively participates by asking questions and calling
witnesses)
 No examination/cross-examination

Evidence relevant to the facts in issue may be given orally or in writing

S34 SCC Act - ORDERS OF THE SCC:

Judgement for the plaintiff if claim has been proved

Judgement for defendant if counterclaim/plea has been proved
Absolution from the instance (not enough evidence to make an order)
Judgment relating to costs (limited by S37)

REVIEW AGAINST AN ORDER OF THE SCC:

SCC is not a court of record  cannot appeal against its judgement

However may take decision on review based on the grounds in S46:

∙ Lack of jurisdiction of the court
∙ Interest in the matter, prejudice, malice or corruption by the
commissioner
∙ Gross irregularity with regard to proceedings

Specialised Courts
LABOUR COURTS:

Establish by S151 Labour Relations Act

Has same status (authorities and powers) as a High Court

Has jurisdiction in all provinces in SA and may perform its duties in

any place within the Republic

Exclusive jurisdiction in all labour matters as stated in the Labour

Relations Act or any other legislation applicable to the Labour Court
(BCEA, EEA, SDA etc...)
 LC has its own set of rules and procedures and may refuse to
adjudicate a matter if it is not satisfied that there was an attempt to
resolve the dispute through reconciliation

LABOUR APPEAL COURT:

S167 Labour relations act establishes that the LAC is the final court of
appeal in all judgements mad by the LC regarding matters within its
exclusive jurisdiction

Has same status as the SCA in matters within its jurisdiction

Superior Courts Bill - Labour Court and Labour Appeal Court:

∙ Provides for the integration of the LC into the HC and the LAC
into the SCA
∙  No longer separate courts
∙ Matter will be heard by a panel of judges in the HC and SCA

COMPETITION APPEAL COURT:

Established by S36 Competition Act

This Act also established a:

∙ Competition Commission – responsible for the control,
investigation and evaluation of restrictive practices, abuses of
dominant position and mergers
∙ Competition Tribunal – responsible for adjudicating such matters
CAC consists of at least 3 judges

Has same status as HC

OTHER COURTS:

Land Claims Court:

∙ Established by S22 of the Restitution of Land Rights Act
 ∙ Same status as HC
∙ Has exclusive jurisdiction to determine a right to restitution of
any land in accordance with the Act, compensation relating to
appropriation/acquisition of land, title to land
∙ Seat = Randburg

Special Income Tax Court:

∙ Established by S83 Income Tax Act
∙ Court is composed of a judge/acting judge of the High Court, an
accountant of 10 years and a representative of the commercial
business community

Electoral Court:
∙ Established by S18 Electoral Act
∙ Same status as High Court
∙ Consists of a judge from the SCA plus 2 judges from a HC plus 2
members who are SA citizens

Special Consumer Court:

∙ Same status of High Court

Divorce Court:
∙ Has concurrent jurisdiction with High court relating to divorce
and ancillary matters

Children’s Court:

Maintenance Court:
∙ = District MC

Equality Court:
∙ Every MC and HC = an Equality Court
∙ Deals with complaints of unfair discrimination
Doctrine of Precedent
WHAT:
 = stare decisis

Constitutional dispensation did not affect the doctrine of precedent

Lower courts are bound by the decision (ratio decidendi) of the higher
courts:
∙ Lower court does not have to be bound by the decision of the
higher court if court did not lay down a binding principle
∙ Not bound by the obiter dictum

SCA is bound by its previous decisions:

∙ Unless there is an error in judgement
∙ Or judgement is based on unsound reasoning

HC is bound by its previous decisions and the decisions of the SCA:

∙ Unless the decision was extremely wrong and ought not be
followed
∙ Single judge in HC must follow the decision of a full bench in the
HC

Officers of the Court

OFFICERS:

Judges:
∙ = Presiding officers of the CC, SCA and HC
∙ Drawn from the ranks of attorneys, senior advocates or legal
academics
∙ Appointed by the President of RSA on the advice of the Judicial
Services Commission

Magistrates:
∙ = Presiding officer of the MC
∙ District Magistrates and Regional Magistrates
∙ Magistrates are no longer part of the civil service – they are now
independent office bearers
 ∙ Drawn from the ranks of prosecutors and private legal
practitioners

Registrars of HC:
∙ = Chief of the administration of the HC
∙ Deals with issue of processes, filing of documents, enrolment of
matters, issues of court orders, writs and taxation of bills of costs
∙ Sometimes have the powers to grant default judgements

Clerks of the MC:

∙ = Chief of administration in the MC
∙ Deals with issue of processes, filing of documents, enrolment of
matters, issues of court orders, writs and taxation of bills of costs
∙ Does a lot of default judgements (as MC is used extensively for
the collection of debts)

Sheriff:
∙ = Officer of the courts that attends to the serving of all processes
issued by the court (eg: summons, writs etc...)
∙ Appointed for a specific geographical area
∙ Not part of the Department of Justice – they are independent
contractors that owe a duty to the courts
∙ May serve documents between 09:00 and 17:00 Monday to Friday
unless exceptional circumstances require otherwise
∙ After sheriff has attended to the service of the document – he
must compile a return of service indicating how the service was
effected and must furnish the return to the instructing party and
to the court

Master of the HC:

∙ Performs functions relating to deceased and insolvent estates,
trusts, liquidations etc... - each HC has its own Masters Office
LEGAL REPRESENTATIVES:

In SA = 2 types of legal representatives:

∙ Attorneys
∙ Advocates
Attorney:
∙ = General practitioner and tends to a wide range of legal
functions apart from representing parties in criminal/civil
matters
∙ Eg: they draft contracts, draw up wills, register companies,
administer deceased estates etc...

Advocate:
∙ = Specialist litigators and draft legal opinions
∙ Must be briefed by an attorney before goes to court
∙ Members of the public may not go directly to an advocate – they
must go to an attorney who will then in turn, brief an advocate

Right of Appearance in the HC:

∙ Previously attorneys had no right of appearance in the HC and 
had to brief an advocate on any matter going to the HC
∙ Now, due to the Right of Appearance in Court Act – this right of
appearance has now been extended to attorneys
∙ However, attorneys must have been in practice for at least 3 years
and must make a formal application to have this right of
appearance
∙ Application must be signed by an advocate or another attorney
who already has this right of appearance

Attorneys are strictly regulated by the Attorneys Act – attorney may

not practice unless he is a member of the law society
Advocates are not strictly regulated as the Admission of Advocates
does not require and advocate to be part of a society (a bar)
∙ However, if advocate is part of a bar are strictly regulated
∙ Bar = a society of practicing advocates

ALL legal practitioners are officers of the court and they owe a duty to
the court not to mislead and to act within the best interests of the
administration of justice
∙ HC has the inherent power to discipline legal practitioners
 Admission requirements for attorneys:
∙ Over the age of 21yrs
∙ SA citizen
∙ Must be a fit and proper person
∙ Must have an LL.B degree
∙ Must do articles + courses + pass board exams

Admission requirements for advocates:

∙ Over the age of 21yrs
∙ SA citizen
∙ Must be a fit and proper person
∙ Must have an LL.B degree
∙ If want to be a practicing advocate:
- Must do pupilage + application for pupilage (training = bar
exam)

LEGAL PRACTITIONERS BILL:

Aims to regulate legal practitioners

∙ Wants to unite professions by having legislation applicable to
both attorneys and advocates
∙  it will repeal the Attorneys Act and the Admission of Advocates
Act

Distinguishes between:
∙ Attorneys’ with a fidelity fund certificate (attorney)
∙ Attorney without a fidelity fund certificate (advocate)

Forces LL.B graduates to do community service