CPR3701: Criminal Procedure

Chapter Two: Criminal Courts of the Republic

1. Introduction

• S 165(1) of the Constitution – Judicial authority of the Republic is vested in the courts,
• S 165(2) of the Constitution – Courts are independent and are subject only to the
Constitution and the law, which they must apply impartially and without fear, favour or
prejudice.
• Superior courts – CC, SCA and High Court. Lower Courts – Regional and District
Magistrates’ Courts.
• Chief Justice of the CC and Office of the Chief Justice exercises responsibility over all
courts and are responsible for establishing and monitoring norms and standards
necessary for exercising judicial functions of all courts (s 165(6) of the Constitution).
• Jurisdiction – the authority of a court to hear and decide any issue or a specific matter
whether on trial, appeal or review.

2. Superior Courts

CC

• Highest court of the Republic – consists of a Chief Justice, Deputy Chief Justice, and
9 other judges (s 167(1) of the Constitution). A matter before the CC must be heard by
at least 8 judges (s 167(2) of the Constitution).
• Has final jurisdiction in respect of all matters. CC makes a final decision on whether a
matter is within its jurisdiction (s 167(3)(c) of the Constitution). CC makes a final
decision on whether a national or provincial Act is passed or the conduct of the
President (s 167(5) of the Constitution).
• CC has exclusive jurisdiction in matters of (i) disputes between national or provincial
organs of state regarding constitutional status and powers or functions; (ii)
constitutionality of any national or provincial Act; (iii) constitutionality of any
amendment to the Constitution; and (iv) question whether Parliament or the President
has failed to fulfill a constitutional obligation (s 167(4) of the Constitution).
• CC decides if an applicant may bring a constitutional matter directly to them. A
constitutional matter incl any issue i.r.o interpretation, protection or enforcement of
Constitution (s 167(7) of the Constitution).

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SCA

• May decide any matter on appeal and may enquire into and rule on the constitutionality
of any legislation or conduct of the President (s 170 of the Constitution).
• Refer to pg 34-35.
• s 168 of the Constitution – SCA has the authority to decide appeals. Matters relevant
to appeals, and any matter related to this court.
• The general principle is that leave has first to be sought from the High Court.

HC

• Refer to pg 36-37.

Lower courts

• s 1 - ‘lower court’ means any court established under the provisions of the
Magistrates’ Courts Act 32 of 1944. The courts so established are the
magistrates’ courts with ordinary jurisdiction and the regional courts - s 2 of the
Magistrates’ Courts Act.
• A magistrate’s court is instituted for a district, and a court for a regional division
is instituted in terms of s 2 of the Magistrates’ Courts Act.
• s 170 of the Constitution - Lower courts do not have jurisdiction to enquire into
or rule on the constitutionality of any legislation or on any conduct of the
President.
• Lower courts do not have jurisdiction to hear and decide a matter on appeal or
review except by virtue of s 29A of the Magistrates’ Courts Act, where an appeal
is lodged against a conviction and or sentence of chiefs, headmen and chiefs’
deputies.

Jurisdiction of lower courts – pg 38

Jurisdiction in respect of offences

• District and Regional courts (pg 39).

• Jurisdiction and extended jurisdiction in respect of offences committed on SA territory
(pg 39-40)
• Summary trials (pg 40)
• Pg 43-44 – jurisdiction over matters that occurred outside of SA.

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Jurisdiction with regard to sentencing

• s 276 of the CPA - HC may impose the following sentences: (1) imprisonment,
including imprisonment for life; (2) periodical imprisonment; (3) declaration as
an habitual criminal; (4) committal to a treatment centre; (5) a fine; (6)
correctional supervision; and (7) imprisonment under correctional supervision.
• s 276 of the CPA - A regional court may impose the following sentences: (1)
imprisonment for a period not exceeding 15 years; (2) periodical imprisonment;
(3) declaration as an habitual criminal; (4) committal to a treatment centre; (5)
(6) a fine not exceeding the amount determined by the Minister from time to
time by notice in the Gazette (R600 000); (7) correctional supervision; and
imprisonment from which the person may be placed under correctional
supervision.
• s 276 of the CPA - A district court may impose the following sentences and no
other: (1) imprisonment not exceeding a period of three years; (2) periodical
imprisonment; (3) committal to a treatment centre; (4) a fine not exceeding the
amount determined by the Minister in the Gazette (R120 000); (5) correctional
supervision; and (6) imprisonment under correctional supervision.

Jurisdiction to pronounce upon validity of laws/conduct of the President

• s 170 of the Constitution - all superior courts shall be competent to pronounce on

the validity of any law or conduct of the President. If in any proceedings before
a lower court it is alleged that any law or any conduct of the President is invalid
on the grounds of its inconsistency with the Constitution, or that any law is
invalid on any ground other than its constitutionality, the court shall decide the
matter on the assumption that such law or conduct is valid.
• s 117 of the CPA - Where an accused pleads not guilty in a lower court and his
or her defence is based on the alleged invalidity of a provincial ordinance or a
proclamation issued by the President, the accused must be committed for
summary trial before a High Court having jurisdiction.