Reported Court Cases

Legal Skills 2017

(LSK41A0)

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1. Reported court cases

Additional Reading:

Kleyn & Viljoen Beginner’s Guide for Law Students fourth edition pp 58 – 80.

Kok, Nienaber & Viljoen Skills Workbook for Law Students pp 89-103.

During the course of your legal studies you will find that you are entering a world
totally unfamiliar and new to you. When confronted with your first reading of a
reported court case you may be filled with uncertainty. However, there is no reason
why you should be filled with apprehension.

Reported court cases normally follow a certain structural format. We will give you
some guidelines as to the typographical structure, as well as to the reading,
interpretation and understanding of the cases reported in the South African Law
Reports and other law reports.

1.1 What is a reported court case?

A reported court case is a reported (documented) judgment. It is also referred to

as case law or a law report.

A reported court case is a written record of a particular matter decided by a court.

In other words it is a reported or documented judgment. These documented and
published decisions of professional jurists (judges) who adjudicate disputes in courts
form part of case law. Case law consists of reasoned explanations by the presiding
officer. The explanations relate firstly, to the facts of the case and secondly, to the
legal rules which apply to the particular case.

1.2 The importance of reported court cases

In the same manner that a dentist, surgeon or a mechanic needs his/her instruments
or tools to enable him/her to carry out his/her profession or trade, the legal
practitioner cannot carry out his/her work effectively without the proper and correct
use or application of case law. This is one of the most important tools the jurist
needs to practise his/her "trade" successfully.

Case law is a primary source the law. It is therefore not only a source where legal
rules can be found, but also a source which creates law. Courts in South Africa

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contribute to the development of our legal system by applying legislation (particularly
the Constitution of the RSA of 1996) and the common law.

Apart from case law, the most important sources of South African law are legislation
and the common law.

1.3 Reporting court cases in South Africa

The relevant facts and legal principles that come to the fore in the judgment are
reported or set out in a specific manner in the South African Law Reports. This
reported information is available to all law students and law practitioners, or any
other person that may be interested.

Take note that NOT all cases heard in the various Courts, are reported in the South
African Law Reports. Normally only those judgments that would contribute to the
development of the law, are reported.

Thousands of court cases conducted every day are not reported. Court cases
published in the South African Law Reports have been reported because they set
out legal principles and contribute to the development of the law.

It is not practically possible to report each and every court case which takes place in
South Africa. Even though not all cases are formally reported, court proceedings in
High Courts are normally recorded and a typed transcription of the proceedings is
normally available upon request and upon payment of a fee.

It is important to note that a so-called "unreported" case have the same authority as
a "reported" case.

Reported court cases include judgments where, for example

an important legal principle is involved or is explained, e.g. the nasciturus fiction in

Ex parte Boedel Steenkamp. a new principle is raised, e.g. the Pinchin case, or an
existing judgment (of a court a quo – see later in this unit) is set aside by a court of appeal/

1.3.1 Before 1947 (read only)

Prior to 1947, the judgments of each Provincial Division of the Supreme Court (now
the High Court) of South Africa were reported separately, each in its own set of Law
Reports. So one would find that a judgment given in, for example, the Transvaal

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would be reported in the Transvaal Provincial Division of the Supreme Court
[Transvaalse Provinsiale Afdeling van die Hooggeregshof] – i.e. the TPD [TPA].

In the Law Library the law reports in hard copy, published prior to 1947, are
arranged chronologically according to the provinces [Cape, Eastern Cape,
Northern and South Eastern Cape, Natal, Orange Free State and Transvaal] (RNA –
RNF), followed by the Appeal reports RNG (AD - Appellate Division 1902-1946).

The law reports prior to 1947 are available electronically in the LexisNexis
database.

A list of law reports according to shelf code in the Law Library is available in the tab
(Law Reports) on the Subject Guide for Law (Finding Law Reports) under Lists:

SA Law Reports listed according to Shelf (Subject) Code in the Law Library (2015) in
print format

A list of the abbreviations / citations of these law reports available in print and
electronic format is on the Subject Guide for Law (Finding Law Reports):

1.3.2 After 1947

Since 1947, all reported cases of the divisions of the Supreme Court (thus, different
High Courts), including Namibia, Zimbabwe and the former TBVC states have been
reported in a consolidated set of law reports known as the South African Law
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Reports, abbreviated as SA or sometimes SALR. This abbreviation is used to
distinguish these reports from the reports of other specialised courts’ reports, e.g.
reports on tax cases or the South African Criminal Law Reports, abbreviated as
SACR/SASV and which are reports of criminal cases.

1.3.3 Publication of court cases

It is not practical to publish a whole year’s reports in a single volume; therefore the
reported cases are published monthly and then are normally bound and presented
in a quarterly fashion from 1947 to 2001. Since 2002 the South African Law Reports
are bound bi-monthly and consists of six volumes per year.

This means that from 1947 -2001:

 cases reported in the first quarter of 1994 (i.e. cases reported in the months of
January, February and March 1994), are cited as 1994 1 SA;

 cases reported in the second quarter (April, May and June 1994) are cited as
1994 2 SA; and

 cases reported in the third and fourth quarter (July to December 1994), are
cited as 1994 3 SA and 1994 4 SA respectively.

And since 2002

 cases reported in the first two months of 2002 (i.e. cases reported in the
months of January and February 2002), are cited as 2002 1 SA;
 cases reported in the second two months (March and April 2002) are cited as
2002 2 SA;
 cases reported in the third two months (May and June 2002), are cited as 2002
3 SA;and
 cases reported in the fourth, fifth and sixth two months (July to December
2002), are cited as 2002 4 SA, 2001 5 SA and 2002 SA 6, respectively.
The number of the page on which the report appears is indicated after the volume
of the report.

Example of publication specifications:

Indices and Noter-Ups

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These sources may be used when the full citation of a case is unknown.

Indices and Noter-ups of the South African Law Reports are available in hard copy at
reserve (level 6) on the table in front of the Law Information Desk.

Butterworths consolidated index and noter-up to the All South African law reports ...
and the South African law reports RNH Z BUTT

Juta's index and annotations to the South African Law Reports, 1947-2008 /
compiled by the Editors of the South African Law Reports RNH Z SOUT

Indices and Noter-ups of the South African Law Reports are also electronically
available in the Jutastat Online and LexisNexis databases.

Jutastat Online

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LexisNexis

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1.4 Where to find a reported court case

Court cases are reported in a series of books called law reports. Law reports
contain the judgments of the various High Courts. The decisions of Magistrates’
Courts are not normally formally reported. Many cases are reported in the following
law reports:

Law Reports Abbreviations

South African Law Reports (see SA
divisions)

All South African Law Reports ALL SA

South African Criminal Law Reports SACR

South African Tax Cases SATC

Butterworths Arbitration Law BALR

Reports

Butterworths Labour Law Reports BLLR

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 Butterworths Constitutional Law BCLR
Reports

Sometimes the same case is reported in more than one set of law reports and, as a
result, there will be more than one reference to the particular case (so-called parallel
citations). as is the case with South African Law Reports (SA) that is published
by Juta and All South African Law Reports (All SA) published by LexisNexis.
Parallel citations are only available in the LexisNexis database.
Do a Law Report search:

Click on search result:

The All SA as well as the parallel SA citation will be displayed

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Apart from hard copies in the library, law reports are also electronically available on
Juta online and Butterworths databases. These databases are extremely useful for
purposes of legal research.

The South African Legal Information Institute (SAFLII) is an online repository of legal
information that aims to promote the rule of law and judicial accountability by
publishing legal materials for open access in line with objectives of Global Free
Access to Law Movement. (see www.saflii.org/)

Find copies of recent judgments heard in the Constitutional Court under latest
judgments.(see www.constitutionalcourt.org.za)

1.5 Reading and understanding reported court cases

It takes practice and dedication to master the art of reading and understanding a
reported court case. As is the case with all new and strange things, you will initially
find it difficult to read cases, yet reading and understanding them properly are only
mastered through practice. There really is only one solution – to sit down and start
reading the cases yourself.

The facts refer to the details of the case, e.g. that the parties were married in
community of property on a specific day or that X repeatedly raped the under-aged
girl over a period of three years. The legal principles refer to the general principles
of South African law that are not unique to a specific case, i.e.

 In the case of any marriage in community of property, there is one shared estate
and the parties share equally in the relevant profit and losses.

 The definition of rape: is an act of sexual penetration of a victim, without their

consent.

 The definition of murder is: the intentional killing of another person.

 The definition of culpable homicide is the negligent killing of another person

The facts of reported court cases are of less importance and it is sufficient if you
reflect them in a short summary. This does not mean that you do not have to know
the facts relevant to a court case – many court cases can be distinguished on the
basis of their facts. The statement only means that a summary of the facts relating
to a court case is sufficient this will also make it easier for you to remember the case.

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The actual judgment and resulting court order, in other words, the conclusion
reached by the court after it has applied the relevant legal principles to the facts of
the case, are more important. In a law report, the judgment appears after the court
has

 set out the facts

 set out the legal principles and

 applied the legal principles to the facts

Once you have read the cases independently, you can discuss them with your fellow
students. However, a serious word of caution - never rely on someone else’s
summary of a case! Not only would you be compounding his/her mistake, for you
would have no way of knowing whether the summary is correct, but you yourself will
not be learning the art of reading cases, which will only be to your detriment in the
long run.

A case summary is a concise summary of a court case. During your studies you are
expected to make summaries of the prescribed cases. You will need to have a good
understanding of the cases prior to your tests and exams. A good case summary will
assist you to understand the case.

A note to all law students who wish to complete their legal studies successfully:
READ EVERY COURT CASE YOURSELF AND MAKE YOUR OWN SUMMARY!

Consider the following example of the name of a reported court case (the so-called
case reference or citation):

S v Ferreira and Others 2004 (4) SACR 454

The above reference does probably not mean anything to you at this stage. After
having studied this module you will be able to deduct the following information from
this reference:

 The parties to this case are S (the State) and Ferreira and certain Others.

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 v stands for versus/against.

 The case was reported in the year 2004 and in Volume 4 of the South African
Criminal law reports.

 The case appears on page 454 of the law report.

1.6 How to summarise a court case

Students have different ways of making case summaries. Initially, until you are
familiar with the structure of a court case, it is best to learn one structure.

Full citation of court case:

_________________________________________________________
_________________________________________________________
_________________________________________________________
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_________________________________________________________
Procedural history: (This is the procedural history of the case right from
the beginning)

_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________

The facts: (The facts are all the details of the case, the age of the
parties involved, when did event occur, where did they occur.)

_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________

The legal question/s: (The issue or legal question or problem is what

the argument or dispute is about)

_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________

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_________________________________________________________
_________________________________________________________

The rule: (This includes the legal rule that the courts applied to solve the
dispute. This section of your summary should include the sources of the
law from which the rule came)

_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________

Reasoning (ratio decidendi) (This refers to the reasoning process of

the court in deciding which rules apply. You should also indicate the
public policy, if any referred to by the court. The court often refers to
public policy when suggesting legislative reform or justifying a decision
that is harsh in respect of one party. Sometimes the court will make
remarks in passing (obiter dicta) These comments are the judge’s casual
remarks concerning the law. Obiter dicta do not create precedents.

_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________

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The outcome (result or order): (This refers to the final decision of the
judge and can include an order for costs)

_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________

Evaluation: (In this section you must write your own opinion about the
case. You can include any criticisms that your lecturer have made during
lectures. Your textbook might also include discussion on the case. The
Annual Survey of South African Law may contain important discussions
about cases. Other useful comments may be found in law journals. (See
library guide)

_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
________________________________________________________

2. Distinguishing between civil and criminal cases

2.1 The law of civil procedure

The rules and principles governing the law of civil procedure relate to the court
process and everything that precedes the court process up to and until the final
completion of the legal process.

Definition:

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 The law of civil procedure is that part of the law that prescribes the procedure that
must be followed when one individual wants to enforce his/her right against another
individual, or when one individual suffers some loss and wants to recover the
damages from another party. Therefore, the law of civil procedure is that part of
the law that regulates civil litigation and the enforcement of rights.

There are basically two main procedures that can be followed in the civil process -
an action procedure (trial) or an application (motion) procedure. The parties to
an application procedure are known as the applicant [applikant] and the
respondent [respondent]. The parties to an action are referred to as the plaintiff
[eiser] and the defendant [verweerder].

There are various differences between a civil court case and a criminal court case.
Complete the following table:

Civil Criminal

Example of this type of case:

Example of the name of the

case/reference:

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Parties involved?

Who is dominus litis

(in control of the case)?

Who bears the onus/burden

of proof?

Interest being affected?

Outcome of case - what order

can the court make?

The judgments of various courts concerning civil cases are sometimes reported.
The law report, for example, gives an indication of who the parties to the case were,
who the judge was, the facts of the case, when the case was heard and the rigture of
the legal aid the parties applied to court for. It almost reads like a story in which the
judge first sets out the facts of the case, then applies the relevant legal principles to
the facts, with reference to authority, and finally gives an order, for example that a
judgment is made in favour of the plaintiff and that the defendant must pay the
amount of R100 000 to the plaintiff. As a result of the precedent system, to which we
will refer later on, lower courts are bound by the judgments of higher courts.

The law of civil procedure deals with aspects such as:

 Disputes between natural or juristic persons where one party wants to

enforce his/her rights against another, or a party wishes to prevent violations of
any of his/her rights (e.g. by means of an interdict) or a party wants to recover an
amount in the respect of damages from the other party.

 The jurisdiction of the courts to decide issues relating to private law.

 The different ways in which proceedings can be instituted and conducted.

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  The manner in which documents should be served.

 The manner in which court judgments can be executed.

 Appeal and review.

2.2 The law of criminal procedure

The rules and principles that regulate the law of criminal procedure, relate to the
court procedure in a criminal case, focusing on events from the time the crime is
reported until the suspected criminal is sentenced/judged (and possibly the appeal
by the accused and review thereafter).

In the event of a criminal court case, the State prosecutes someone (an individual)
for committing a crime. Such a case is cited as S (for State) v X (the name of the
accused). This differs from civil court cases in that, in the latter, the State is not one
of the parties involved.

The judgments of various courts involved in criminal matters are often reported.
There is even a separate set of reported court cases known as the South African
Criminal Law Reports (SACR). These reports only contain cases relating to criminal
law.

A typical report of a criminal law case indicates who the accused in the case was,
the name of the judge, the facts of the case, when the case was heard and whether
the accused was found guilty or not. It also indicates the sentence passed if he/she
was indeed found guilty (convicted)

3. The Court structure in South Africa

3.1 Introduction

Section 165 of the Constitution of the Republic of South Africa, 1996 (hereafter the

Constitution) provides that:

 the judicial authority of the Republic is vested in our courts;

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  the courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear, favour or prejudice

 no person or organ of state may interfere with the functioning of the courts;

 organs of state, through legislative and other measures, must assist and protect
the courts to ensure independence, impartiality, dignity, accessibility and
effectiveness of the courts;

 an order or decision issued by the court binds all persons to whom and organs of
state to which it applies.

Section 34 of the Bill of Rights provides that everyone has the right to have any dispute
resolved by the application of the law decided in a fair public hearing before a court or
where appropriate, another independent tribunal or forum

We have recently seen a number of legislative amendments to the court structure of

South Africa. The Superior Courts Act 10 of 2013 (hereafter Superior Courts Act),
commenced on 23 August 2013.

The objectives of the act include:

 to rationalise and consolidate and amend legislation with regards to all courts in
a single Parliamentary Act;

 to administer the judicial functions of all courts;

 to oversee administrative and budgetary matters of all Superior Courts;

 to bring the structure of the courts in line with chapter 8 of the Constitution
(under the Constitution Seventeenth Amendment Act, 2012); and

 to establish the Chief Justice as a chief of the bench.

The Constitution Seventeenth Amendment Act of 2012 came into operation on the 23 rd
of August 2013 and amended chapter 8 of the Constitution. The Act formed a
constitutional base for the Superior Courts Act. Some of the most important provisions
of the act include the following:

 the Chief Justice is the head of the judiciary and responsible for the
establishment and monitoring of norms and standards for the exercise of the
judicial functions of all courts;

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  the introduction of a single High Court of South Africa;

 the Constitutional Court is now the highest court in all matters (See s 167(3) of
the Constitution).

3.2 Hierarchy of South African Courts

Section 166 of the Constitution describes the courts in South Africa.

(1) the Constitutional Court;

(2) the Supreme Court of Appeal;

(3) the High Court of South Africa, including any High Court of Appeal, which may
be established by any Act of Parliament to hear appeals from any court of a similar
status to the High Court;

(4) the Magistrates’ Courts; and

(5) any other court established or recognised in terms of an Act of Parliament,

including any court that has a status similar to that of the High Court or the Magistrates’
Courts.

The hierarchy is important when considering the doctrine of precedent. This doctrine
of precedent is also referred to as the doctrine of stare decisis (the Latin for "let the
decision stand"). It implies that we make a distinction between lower courts and
higher courts. The decisions of certain courts (High Court) carry more weight than
decisions of lower courts (Magistrates’ Courts):

 lower courts are bound to follow the decisions of the High Court;

 the High Court creates precedents which lower courts are bound to apply;

 all courts in South Africa are bound by decisions of the Constitutional Court;

 the High Court is bound to follow its own previous decisions, unless they were
clearly wrong; and

 a division of the High Court in one province is not bound to follow the decisions of
High court in other provinces.

3.3 The Constitutional Court

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The existence of the Constitutional Court is confirmed by section 167 of the
Constitution read with item 16(2) of Schedule 6.

3.3.1 The status of the Constitutional Court

The Constitutional Court is the final court of appeal in respect of all matters. Section
167(3) of the Constitution states that the Constitutional Court

 is the highest court in all matters;

 may adjudicate on any matter by granting leave on the ground that the matter
raises arguable points of law of general public importance; and

 is the final decision maker on whether a matter is within its jurisdiction.

3.3.2 The jurisdiction of the Constitutional Court

Many cases are referred to the Constitutional Court from the Supreme Court of
Appeal.

The Constitutional Court has exclusive jurisdiction with regard to for example the
following matters:

 Disputes between organs of state in the national or provincial sphere regarding

their constitutional status or authority.

 The constitutionality of any parliamentary or provincial legislation.

 Whether or not the Parliament or the President did comply with their
constitutional duty.

No other court may decide or rule over any of these matters. For more information
on the Constitutional Court visit the website at http://www.constitutionalcourt.org.za

3.3.3 The seat of the Constitution

The Constitutional Court has its seat in Braamfontein, Johannesburg. The court is
presided over by the Chief Justice (CJ), the Deputy Chief Justice (DCJ) and nine
other judges. A case in the Constitutional Court must be heard by at least 8.judges.

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3.3.4 Reference to the Constitutional Court in a law report

A reference to a decision of the Constitutional Court is cited as follows:

S v Pennington and Another 1997 (4) SA 1076 (CC)

The abbreviation "CC" is used to indicate that the case was heard by the
Constitutional Court.

Cases of the Constitutional Court are reported in the general South African Law
Reports (SALR), as well as the Butterworths Constitutional Law Reports (BCLR).
The reference technique for cases reported in the BCLR is the same as for SALR
cases.

Example:

Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR

1696 (CC).

3.4. The Supreme Court of Appeal

In terms of s 167(3) the Supreme Court of Appeal, previously known as the Appellate
division (AD), may decide appeals in any matter arising from the High Court or a
court of similar status to the High Court. The Supreme Court of Appeal is only a court
of appeal and not a court of the first instance. It has appeal jurisdiction over the
whole of South Africa. The court sits in Bloemfontein and consists of a President, a
Deputy President and judges of appeal. The quorum of judges is generally 5

3.4.1 Reference to the Supreme Court in a law report

Katz v Katz 1989 3 SA 1 SCA.

3.5 The High Court

The previously independent High Courts have now been consolidated in a single
High Court of South Africa, separated into a number of divisions and in some
instances local seats of a division.

The High Court is a court of the first instance, but can also function as a court of
appeal and review for the Magistrate’s Court. Two judges will form the quorum in the
abovementioned case. When a decision made by a single judge of the High Court is

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appealed, it can either go to a three judge bench or to the Supreme Court of Appeal.
The High Court consists of a Judge President and as many judges as the President
may appoint.

See hand out on black board in respect of various division and abbreviations.

3.6 Magistrates' Courts

Magistrates' Courts hierarchically fall under the High Court .They consist of various
regional and district courts. A regional court has a wider range of jurisdiction than a
district court.

The presiding officer in a Magistrates' Court is a Magistrate and not a Judge.

3.6.1 Jurisdiction of Magistrates' Courts

The Magistrates' Court is a so-called "creature of statute" – it has no inherent

jurisdiction as in the case of the High Court and can only perform acts which are
authorised by specific legislation and court rules.

Previously Regional Magistrates’ Court had exercised only criminal jurisdiction, but
from October 2010 regional divisions have been created to deal with civil matters as
well.

3.7 Other courts

See the Courts of Chiefs and Headmen and the Small Claims Court.

3.8 Specialised courts

Specialised courts include Labour Courts, the Land Claims Court, the Special
Income Tax Court, the Competition Appeal Court, the Electoral Court and the
Consumer Court and Related matters.

4. Appeals

4.1 When to appeal

Where one of the litigants/parties feels dissatisfied with the outcome of his/her case
or is of the opinion that the judge(s) has/have erred in their decision/judgment, the
litigant/party may decide to lodge an appeal against that decision.

4.2 Difference between an appeal and review

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It is important for you to be able to differentiate between appeal and review. In the
case of appeal, the party that lodges the appeal (the appellant) feels that the
judgment of the court was wrong because the court made a mistake – either about
the actual judgment based on the facts provided or about its application of legal
principles to the facts.

In the case of review, there were alleged irregularities in the court procedure, e.g.
the presiding officer was drunk or did not take the relevant facts into account when
he/she made his/her judgment.

4.3 The Supreme Court of Appeal vs a High Court of Appeal

1) It is important to distinguish between the Supreme Court of Appeal (with its

seat in Bloemfontein) which is only a court of appeal

and

2) a High Court of Appeal. In addition to being a court of the first instance, a High
Court can sometimes also hear appeal matters.

In practice, the Supreme Court of Appeal can therefore not function as a court of
the first instance, i.e. a case cannot originate from the Supreme Court of Appeal,
but can be referred to it if a litigant/party lodges an appeal against a judgment that
was made in another court.

4.4 Appeal FROM the court a quo TO the court of appeal

The court FROM WHICH the appeal is made, is always called the court a quo (a
Latin term that means from where).

The court TO WHICH the litigant appeals, is called the court of appeal, i.e. the court
hearing the appeal lodged from the court a quo.

4.5 The parties to an appeal

The party that lodges the appeal is referred to as the appellant. The party against
whom the appeal is lodged (i.e. the person who opposes the appeal), is referred to
as the respondent.

In other words, the "dissatisfied" party that lodges the appeal is the appellant and
the party in whose favour the court a quo delivered judgment (and who now
opposes the appeal) is the respondent.

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 4.6 The procedure of an appeal: Summary

The Supreme Court of Appeal in Bloemfontein may decide appeals arising from the
High Court or a court similar to the High Court, except in respect of labour and
competition matters. The Constitutional Court is now the highest court in all matters

Summary of appeal possibilities:

Court a quo Court of appeal

↓ ↓

1. Magistrates’ Court → High Court

2. Single judge in High Court → Full bench in High Court

3. Single judge in High Court or full bench → Supreme Court of Appeal

4. High Court or Supreme Court of Appeal → Constitutional Court

5. The structure of law reports

In order to analyse a court case and to highlight certain principles, we will mainly use
the following case (a copy of this case is available on black are included at the
blackboard):

 Ex parte Boedel Steenkamp 1962 3 SA 954 (O)

 As you can see from the reference above, the Steenkamp case was originally an
Afrikaans case. Since the Afrikaans case is the actual source document on which
most of the notes in this subunit are based, a translation in English is also attached
after the original Steenkamp case at the back of this learning guide, to enable you to
follow the notes.

 5.1 How are law reports marked

 The structure of a reported case, by and large, remains the same. The relevant
sections that we will be discussing in this subunit are, for the purpose of this learning
guide, demarcated alphabetically from M to Z.

 5.2 Specific structure

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 When considering any reported court case, you will note that every page of every
case is marked from A to Z in the margin. Do not confuse this demarcation
with the demarcation from M to Z below.

 When considering any reported court case, you will note that every page of every
case is marked from A to Z in the margin. Do not confuse this demarcation
with the demarcation from M to Z below.

 Herewith then, each of the components of reported judgments as they will be

discussed in this unit:

Letter Description

[M] Alphabetical demarcation (from A - J) of every page of the reported case.

[N] The name of the case reported.

[O] The jurisdictional area of the relevant High Court.

[P] The date(s) upon which the case was heard, the date on which
judgment was given, as well as the name(s) of the judge(s) who heard
the case.

[Q] The catchword paragraph.

[R] The head note.

[S] The nature of the legal aid or help that is being requested.

[T] The name(s) of the legal representative(s) representing the litigant(s)

or party(ies) before court.

[U] The heads of argument of the legal representative(s).

Heads of argument do not appear in all reported cases.

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 [V] The words Cur. ad. vult. and Postea appear.

[W] The judgment.

[X] The order the court issues in respect of the legal aid applied for (in [S]
above), as well as any order concerning costs (in civil matters), or the
order issued in criminal matters.

[Y] The name of each litigant’s respective law firm/attorney’s office.

[Z] Where the judgment was originally delivered and reported in Afrikaans,
a translation of the catchword paragraph and the head note usually
appears in English at the bottom of the first page of the report.

5.3 Comments on the structure of law reports

Cases reported in the South African Law Reports are often given the alphabetical
letters A-H (these days it appears to be A-J) in the margin of each page of the
report. These letters in the margin are actually paragraph markers and their purpose
is to make it easy to identify a specific place on a particular page when referring to a
specific case.

For example, after the legal representative has given the complete citation of the
case in court once, he/she will simply refer from then on to “The Steenkamp case at
955 A or 956 B”.

5.4 Name of the case

Each case has a case name, which indicates who the parties or bodies are that are
the litigants in that particular case.

In the case name

AB v CD

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AB and CD indicate the names of the litigants and the “v” means versus.

Sometimes the case name does not reflect the full name of a litigant. It may be
necessary to protect the identity of a person, either because of age (e.g. a child –
see F v L and M v R as examples), or because of the sensitive nature of the matter
(e.g. a sex change operation – see W v W).

It is also possible to deduce the nature of the litigation from the case name. You
can therefore tell whether it is a criminal matter, and whether it is a civil matter.
More information on this is given in the next few paragraphs.

5.5 Civil vs Criminal case

It is important that you know what the difference is between a criminal matter and a
civil matter.

Example of a criminal case name:

S v Botha

State Accused

Example of a civil case name:

Botha v Smit

Plaintiff/applicant Defendant/ respondent

5.5.1 Criminal case

In the case of a criminal matter, the state is one of the parties to the matter and the
letter R or S will appear in the case name, e.g.

R v Blom or S v Swart
Prior to 31 May 1961, i.e. before South Africa became a Republic, criminal cases
were indicated with the letter R, which stands for Rex or Regina (in recognition of
the British king (Rex), or later queen (Regina)). Since South Africa became a
Republic, the R has changed to S, which stands for State, e.g.

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 S v Swart 1965 3 SA 454 A.
In criminal cases, the State, represented by public prosecutors (in Magistrates’
Courts) or state advocates (in High Courts) of the various offices of the
Attorneys-General, acts against a legal subject, when an offence is deemed to
have been committed. What is involved is therefore a dispute between the State
and the accused (person charged with committing the offence).

So, a reference to a case S v Swart means that the State has laid a criminal
charge/instituted criminal proceedings against a certain person, one SWART, who is
known as the accused in the matter concerned.

5.5.2 Civil cases

If it is a civil matter, there are several possibilities relating to the different categories
of litigants and the nature of the legal assistance involved. A brief explanation
follows.

In a civil case, there are two main forms of litigation, namely a trial or action
procedure and an application or motion procedure. The question of which
procedure is applied depends on various factors and circumstances.

5.5.2.1 Action and application procedures

Characteristics of the application procedure:

 The application procedure is used when there is NOT a material dispute of fact
between the parties.

 The application procedure begins with the issue of a notice of motion with a
founding affidavit.

The parties (litigants) to an application are the applicant (person asking for legal
assistance/directing the application to the court) and the respondent (person
against whom legal assistance is requested).

 The application can take the form of

1) an ex parte application (there is only an applicant and no respondent – the

reason being that no person is affected by the legal assistance that the
applicant requests, e.g. when an application is made for a presumption of

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 death) and the words ex parte will then also appear in the name of the case
concerned, or

2) an application in which there is an applicant and a respondent – in other

words, the applicant asks for legal assistance against a particular
respondent.

 The matter is argued by means of affidavits before the court and oral evidence
is not necessary.

The application procedure is also used when a declaratory order is requested. In

other words, the parties request the court for an answer to a specific question.
Instances where application procedure can be used, include application for
admission as attorney or advocate of the court, application for a presumption of
death order, a rule 43 application and a liquidation or sequestration application.

Characteristics of the action procedure:

 The action procedure is used when there is a material dispute of fact and the
only way to analyse and judge the facts properly is by giving evidence in court.

 The parties to the action procedure are the plaintiff (who institutes the action)
and the defendant (person who defends the action/person against whom action
is instituted).

 Note that an action is defended but an application is opposed.

 The action procedure usually takes longer and is therefore more expensive than
the application procedure, as various pleadings and notices have to be
exchanged between the parties before the case is ready to go to trial.

The names of the litigants simply form the case name, e.g. Pinchin and Another,
NO v Santam Insurance Co Ltd.

 The action procedure begins with the issuing of a summons, to which the
defendant later pleads (i.e. admits or denies the allegations).

 After closing of the pleadings – also known as litis contestatio – a trial date is
set. Oral and/or other evidence (e.g. documentary evidence) is presented on
that day.

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After witnesses have been sworn in and examination in chief, cross-examination and
examination have taken place, the court will pass a judgment and make an order.In
certain cases it is compulsory to use the action procedure, e.g. in the case of a
divorce and a claim to recover damages (e.g. after a car accident or alleged
defamation).

5.6 The role players

Next we will take a closer look at the different role players

(litigants/parties/dramatis personae) in a court case.

5.6.1 The plaintiff

This is the legal subject, be it a natural or a legal person, that institutes a claim or
issues a summons against another legal subject. The plaintiff’s name appears first in
the case name. The plaintiff issues a summons which initiates the action procedure.
Where the words “and Another” or “and Others” appear before the “v” in a case
name, it means that in addition to the person/legal subject specifically mentioned,
there is also another party or parties who are plaintiffs in the case concerned. The
words are therefore used when there is more than one plaintiff. Where the words “et
uxor” are used, this indicates a woman who is the plaintiff concerned - “uxor” means
woman. The letters “NO” stand for “Nomine Officii” and “NN.O” is the plural. It
means “in his official capacity”. This is used when a litigant, be it the
plaintiff/defendant/applicant/appellant/respondent, is not litigating in his/her personal
capacity, but in a representative or official capacity – e.g. as the trustee or guardian
of a child.

 In the context of the Pinchin case (Pinchin and Another, NO v Santam

Insurance Co Ltd) the words and Another (singular) simply mean that the
“other” party is the child on whose behalf the guardian (Pinchin) is claiming.

5.6.2 The defendant

The litigant against whom the plaintiff institutes the action is called the defendant.
The defendant’s name appears after the “v” in a case name.

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Where the words “and Another” or “and Others” appear after the “v” in a case
name, it means that in addition to the person/legal subject specifically mentioned,
there is also another party or parties who are defendants in the case concerned.
The words are therefore used when there is more than one defendant.

Where the words “et uxor” are used, this indicates a woman who is the defendant
concerned - “uxor” means woman, as previously explained. The letters “NO” (as
already explained in the section on the plaintiff in a court case) are used when a
litigant, be it the plaintiff/defendant/applicant/appellant/respondent, is not litigating in
his/her personal capacity, but in a representative or official capacity – e.g. as the
trustee or guardian of a child.

In Ex parte Boedel Steenkamp there is no defendant for the simple reason that the
case concerned is an application procedure – there is then no defendant. In the
Pinchin case the defendant is the insurer, Santam Insurance Co.

5.6.3 The respondent

The respondent in an application procedure is that person/litigant to whom notice

must be given that the applicant will be directing his/her request to court, or it is the
interested party opposing the application. The term respondent can, however, also
have another meaning. If a party to a case is not satisfied with the decision of the
court a quo, he/she can appeal against it to a Court of Appeal If such an appeal is
lodged, the parties concerned are known as the appellant and the respondent.
The respondent in this case is the person/litigant against whom the appeal is
lodged.

5.6.4 The appellant and the applicant

In contrast to the concept of respondent, which can have two meanings, the
distinction between the litigant that brings an application to court – the applicant -
and the litigant who lodges an appeal – the appellant – is easily made.

Consider the following case: Louw v MJ & H Trust (Pty) Ltd 1975 4 SA 268 (T)

In the court a quo, which was a Magistrate’s Court, Louw as plaintiff claimed back
certain installments paid to the Trust. In this case the Trust was the defendant
(ignore for now the Trust’s counterclaim). The court a quo found that Louw was

32
bound by the contract concerned. Because Louw felt that the decision of the court
a quo was wrong, he appealed to the Transvaal Provincial Division of the High
Court, which in this case was the High Court of Appeal. Louw was the appellant
and the Trust was the respondent.

6. Comments on the structure of law reports

Once a part in the structure of a court case has been identified, we will
comment on it with specific reference to examples

[N] – Case name

Ex parte Boedel Steenkamp 1962 3 SA 954 (O)

From the case name we can deduce that it is a civil case, and an ex parte
application. This means that there is only one applicant. In Ex parte Boedel
Steenkamp – here the court was asked to issue a declaratory order, namely to
declare whether the youngest child (Paul Johannes de Villiers) was entitled to share
in his grandfather’s inheritance – this was the reason why the application was
brought before the court.

[O] –The area of jurisdiction of the High Court

We can deduce that it was the Orange Free State Provincial Division of the High
Court that heard the case.
[P]- Trial and judgment dates

In terms of the trial and judgment dates, note the following (based on an
example):Ex parte Boedel Steenkamp 1962 3 SA 954 (O)

This case served before the court for two days. On 21 June 1962 the application
was heard and after the judge reserved judgment to consider the case, the verdict
was given on 5 July 1962. The judge therefore did not give the verdict on the same
day on which the application was brought before the court, but decided to reserve his
judgment
[P]- Judges

In some cases there is only one judge who passes judgment and in others there may
be more than one. In the Steenkamp case a certain J De Villiers was the (only)

33
judge in this case and was indicated as [De Villiers, J]. However, there may also be
two judges in a case, and even three judges.

A court in which three judges sit is usually called a full bench. In this situation, one
judge usually gives the verdict and the other two agree with him. Note the letters
(abbreviations) that appear after the names of the judges in some cases - usually
they are J, AJ, JA, AJA, CJ, or JP. If there is more than one judge, the
abbreviations will basically be JJ, JJA, etc. Note that these letters do not indicate
the initials of the judges, but their titles.

Study the brief summary of the different titles for different judges in English and Afrikaans
provided in the table below:

Eng.
Abbre- Different judges Afr.
viation

J Judge / Regter R

AJ Acting Judge / Waarnemende regter WnR

JA Judge of Appeal / Appèlregter AR

AJA Acting Judge of Appeal / Waarnemende Wn AR

Appèlregter

CJ Chief Justice (of South Africa)/ Hoofregter HR

JP Judge President (of a province)/ Regter RP

President

[Q] – The flynote paragraph

This is a short paragraph in italics that appears directly after the trial and judgment
dates in a court case. The aim is to give the reader (i.e. jurist or person learned in
the law) the opportunity to see at first glance whether the case will be relevant for
his/her purposes without reading the whole headnote (see below) or even the whole
judgment.

34
Look at the flynote paragraph in Ex parte Boedel Steenkamp – do you agree that we
can immediately see that it deals with the interpretation of a will where the interests
of a foetus are at stake?

[R] – Headnote

Not all headnotes necessarily follow the same pattern, but usually the headnote of a
case contains a summary of the essential facts, followed by the judge’s decision.
(You will notice that many of your prescribed cases follow this pattern.) The judge’s
decision in the case follows after the word “held” [beslis]. In other cases the
headnote simply sets out the legal position without any specific reference to the
particular facts of the case. In Ex parte Boedel Steenkamp you find an example of a
very short headnote.

The head note of a case is like a minefield with endless dangers because many
head notes are very short and concise and sometimes do not reflect the true
decision as given in the judge’s verdict. So do not rely solely on the headnote of
the case! The impression that the headnote creates is that in all cases involving
bequests, the foetus is presumed to be alive (the ratio decidendi – see your list of
Latin terms). The child is therefore automatically entitled to inherit if he/she is born
alive. However, this is not what the judge decided.In addition to the fact that it
must be to the benefit of the foetus, the nasciturus fiction cannot be applied if it is
clear from the testator’s intention that he wants to exclude the fiction. This is what
the judge decided at page 956 G (see W6)

Apart from the decision(s) of the judge, there are sometimes other “foreign” words in
the headnote. “Quare” is one such example.When a paragraph in the headnote
starts with the word “quare”, it means that as far as the legal principle following the
“quare” is concerned, there is either uncertainty about it, or a question hanging over
it, or there was no decision on the legal principle concerned in that particular case.
The legal principle is therefore still open for adjudication.

Another “foreign” term that may appear in the headnote is “semble”.The word
semble can freely be translated as “apparently”.The person who drafts the headnote
can postulate a general legal principle, but can then start the paragraph in which
he/she makes the legal statement with the word semble – which then actually
means that although the legal principle concerned was left open by the judge (in

35
 other words, the judge made no decision on the legal principle concerned), the legal
principle can be deduced from the judgment.

[S] – The nature of legal assistance

In each judgment the nature of the legal assistance requested is mentioned directly
after the head note. In Ex parte Boedel Steenkamp this part of the judgment can be
found at page 954 C of the report. It is stated specifically that the case deals with an
application for the interpretation of a testamentary provision and specific legal
assistance is requested in this regard, namely a declaratory order – in other words,
the court must answer a particular question.

[T] – The legal representatives

This section indicates the name/names of the legal representative(s) representing

the party/parties in the case.

If the term “curator ad litem” is used in the section [T] of a court report, it means the
following: The High Court (in its capacity as supreme guardian of all minors) was of
the opinion in the case concerned that the interests of the child(ren) required that the
court appoint a person, normally an advocate of the High Court, to look after the
interests of the child in the particular matter. This person is known as the curator ad
litem.

The letters “QC” and “SC” also need to be explained. “QC” means Queens Counsel
and is derived from British law. The South African equivalent is “SC” and it means
Senior Counsel. These are titles assigned to the most senior members of the
advocacy, and many of these senior advocates are later appointed as judges.
Usually a senior advocate is used when the case involves complex legal and
factual issues.

 In Ex parte Boedel Steenkamp we see in T at pages 954 D and 955 C of the report
that HJO van Heerden and PE Linde were the legal representatives of the children
Gerda and Daniel Johannes de Villiers and Paul Johannes de Villiers, respectively.

36
In Ex parte Boedel Steenkamp we see that the interests of Gerda and Daniel were
represented by one curator ad litem, and the interests of the youngest child, Paul,
were represented by another curator ad litem.

[U]- Heads of argument

Each litigant’s legal representative puts forward arguments before the court to
prove/support his/her side of the case. For each argument that the legal
representative gives in court, he/she must provide authority. Because several
aspects may be involved, it is customary to set out the arguments under various
headings, which we call the heads of argument.

In the High Court the legal representatives are compelled to submit written heads of
argument in advance in which they explain their arguments and set out the
authority.

[V] – Meaning of Cur. adv. Vult. and postea

The words Cur. adv. vult are an abbreviation for curia advisari vult, which means
that judgment is reserved by the court so that it can consider its verdict.

The word Postea literally means “at a later stage” – the court therefore passed
judgment at a later date after considering the case.

In Ex parte Boedel Steenkamp we see that the application was submitted to court
on the 21st day of June 1962. The court did not render its verdict immediately, but
reserved judgment – i.e. Cur. adv. vult. Postea, i.e. at a later stage, after the court
considered its verdict, the court passed judgment in the case on 5 July 1962.

[W] – The judgment

Under this section of the comments we need to touch on several aspects. We will
deal with the specific aspects numerically under this section by using Ex parte
Boedel Steenkamp and some other cases where a particular point may be a good

37
illustration. The purpose is to briefly describe the structure of the judgment itself and
to illustrate how the judge came to certain decisions

If a court case contains quotes, the specific quoted sections are in smaller print than
the normal text of the case. For example, see the quotes in the section of the
judgment marked W10 at pp. 956 C and F.

(See W1) The name of the judge who gives the verdict appears before the judgment.
The title appears after his name (e.g. J for judge) [R for regter]).In Ex parte Boedel
Steenkamp we see that the judgment was passed by Judge de Villiers.

The relevant facts of the case are explained in W2.

(See W3-6) In this section of the case the judge explains the current legal position.
The legal principle is therefore given, followed by the authority in support of it.In Ex
parte Boedel Steenkamp the following is apparent from the explanation: A foetus is,
for the purposes of the law of succession, already deemed to be born if it is to his/her
advantage. The judge refers to certain authority in support of these principles.
These are found at p. 956 B-D of the report.If it appears from the will of the testator
(the person who made the will) that he/she wanted to benefit a certain class of
person, e.g. his/her grandchildren, it would not have mattered whether the
grandchildren were conceived by the time of his/her death – all the grandchildren
would have inherited (see W5 at 956 E-F of the report for the legal principle and the
authority quoted there in support of the principle).

However, another legal principle that applies is that if, in interpreting the whole will, it
appears that the testator had another intention, namely that neither the already
conceived but as yet unborn foetus, nor children not yet conceived at the time of the
testator’s death will inherit, this strong natural presumption in favour of the foetus is
disposed of, and he/she will not share in the inheritance – see W6 at p. 956 G.

(See W4, 5 and part of 10) In these paragraphs the legal position is explained. You
will notice that the presumption in favour of the foetus comes from Roman law and
was incorporated in Roman-Dutch law. This can be seen at pp. 956 B and G, and
957 B in Ex parte Boedel Steenkamp, where reference is made to Voet (a writer)
1.5.5 and 28.5.12 and 13, as well as Digesta 1.5.7 and 26 (one of Justinian’s
codifications in the Roman Empire that you will study when we deal with the module

38
on Legal history). Reference is also made to the South African Law Journal, a well
known South African legal journal.

(See W7-8) This is where the two arguments of the legal representatives are set out.
Van Heerden argues that the words of the testator indicate that the presumption in
favour of the foetus is disposed of, whereas Linde is of the opinion that the words do
not dispose of the presumption in favour of the foetus.

(See W9) The court accepts Linde’s argument, and is of the opinion that the
intention of the testator is not to exclude a child that has already been conceived by
the time of the testator’s death, but born later (see pp. 956 H and 957 A of the
report).

(See W10) In addition to the Roman, Roman-Dutch and South African authority to
which we have referred above, the judge also considered English and Scottish law.
Apparently both these legal systems contain a presumption similar to that in Voet
1.5.5. The relevant principles of English and Scottish law are also explained at p.
957 B-H of the report.

Judge de Villiers then quotes from the English case of Elliot v Lord Joicey and Other
1935 AC 209 (see part W10 at p. 957 C-G). As previously mentioned, these kinds of
quotes are in smaller print than the normal text of the case. Also see the quotes at p.
956 C and F. At p. 957 H the judge discusses the ratio decidendi (see explanation
of the term in the paragraph below) of the English judgment, from which it appears
that the strong presumption in favour of the foetus will be disposed of only if the
intention of the testator is clearly that the foetus should not inherit.

Ratio decidendi refers to the legal statements that form part of the judgment and
that are essential for the decision/finding. By contrast, the statements not necessary
for the decision (the so-called remarks in passing by the judge) are known as obiter
dicta.

(See W11) The judge accepts the ratio decidendi of English and Scottish law. The
question to be answered therefore seems to be: what is the testator’s true intention
in view of his/her words in the will as a whole?

(See W12) The finding of the judge was that the testator did not actually intend to
exclude the foetus, which was born alive later, from his will.

39
The reasons for this finding seem to be that the presumption in favour of benefiting
the foetus is very strong and that the testator would have had the natural impulse to
want to benefit his grandchild in ventre matris (unborn child) (see 958 A-B].

In addition, the judge was also of the opinion that the words “in lewe”, “by die dood”
and “born” must not be taken literally in these types of cases. The court refers to Ex
parte Odendaal 1957 2 SA 15 (O) as authority for this view (see 958 C-D).

The stare decisis doctrine applies in South African law and the term is derived from
the Latin sentence stare decisis et non quieta movere, which means: allow the
decision to stand.The practical application of this doctrine means that if a High Court
has reached a decision in the light of a clear legal statement relevant to the facts
before the court, that statement is the law and is binding on all other courts. In other
words, they are compelled to follow precedents created by the court concerned. he
hierarchy/ranking of courts plays a decisive role in terms of which courts are bound
to decisions.

(See X – the court order) After the judge has made his findings, the order is issued
in terms of the requested legal assistance.

In Ex parte Boedel Steenkamp the judge orders that the youngest child, Paul
Johannes, must share equally in the remainder of the estate with the other two
children and his mother (see p. 958 D of the report).

(See Y) The names of the firms of attorneys of the various parties to the matter
appear at the end of the judgment.

In the Steenkamp case only one party was involved, namely the executor, and so
only one firm was used.

(See Z) If a judgment is delivered in Afrikaans, the custom is usually to translate the

flynote/catchword paragraph and the head note of the report into English and to
place it at the bottom of the page concerned in the report where it occurs.

Not all jurists in the world can understand Afrikaans and (as is clear from the
judgment of the Steenkamp case) it is not unusual to refer to foreign legal systems –
whether they are in South Africa or elsewhere in the world. Translating the flynote
and headnote of a court report makes it possible for jurists all over the world to use
them.

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In terms of section 39(1) of the Constitution:

“(1) When interpreting the Bill of Rights, a court, tribunal or forum —

(a) must promote the values that underlie an open and democratic society based on
human dignity, equality and freedom;

(b) must consider international law; and

(c) may consider foreign law.”

It is not unusual for us, as do others in the world, to refer to foreign legal systems.
As we said earlier in the unit, reference is made in the judgment (W) of the
Steenkamp case to English and Scottish law.

41