The Constitution of the Republic of South Africa, 1996, is the supreme law of the country and binds all legislative, executive and judicial organs of State at all levels of government.
The judicial authority in South Africa is vested in the courts, which are independent and subject only to the Constitution and the law. No person or organ of State may interfere with the functioning of the courts, and an order or decision of a court binds all organs of State and people to whom it applies.
The Constitution provides for the following courts:
- Constitutional Court
- Supreme Court of Appeal
- high courts, including any high court of Appeal that may be established by an Act of Parliament to hear appeals from high courts
- magistrates’ courts
- any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either high courts or magistrates’ courts.
Other courts include: income tax courts, the Labour Court and the Labour Appeal Court, the Land Claims Court, the Competition Appeal Court, the Electoral Court, Divorce Courts, Small Claims Courts, Military Courts and Equality Court.
Decisions of the Constitutional Court, the Supreme Court of Appeal and the high courts are an important source of law. These courts uphold and enforce the Constitution, which has an extensive Bill of Rights binding all State organs and all people.
The courts are also required to declare any law or conduct that is inconsistent with the Constitution to be invalid, and develop Common Law that is consistent with the values of the Constitution, and the spirit and purpose of the Bill of Rights.
In response to the constitutional requirement that everyone has the right to access to a court, the DoJ&CD will continue providing court infrastructure and improving access to courts.
The legal profession is divided into two branches – advocates and attorneys – that are both subject to strict ethical codes.
Advocates are organised into bar associations or societies, one each at the seat of the various divisions of the High Court.
There are voluntary associations of advocates such as the General Council of the Bar and other formations of independent bars. There are four regional societies for attorneys, each made up of a number of provinces. A practising attorney is by the operation of the law a member of at least one of these societies, which promote the interests of the profession. The Law Society of South Africa is a voluntary association established to coordinate the various regional societies.
In terms of the Right of Appearance in Courts Act, 1995 (Act 62 of 1995), advocates can appear in any court, while attorneys may be heard in all of the country’s lower courts and can also acquire the right of appearance in the superior courts. The Attorneys Amendment Act, 1993 (Act 115 of 1993), provides for alternative routes for admission as an attorney.
All attorneys who hold an LLB or equivalent degree, or who have at least three years’ experience, may acquire the right of audience in the High Court.
State law advisers provide legal advice to ministers, government departments, provincial administrations and a number of statutory bodies. In addition, they draft Bills and assist the Minister concerned with the passage of Bills through Parliament. They also assist in criminal and constitutional matters.
The Constitutional Court is the highest court in all constitutional matters. It is the only court that may adjudicate disputes between organs of State in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of State, or that may decide on the constitutionality of any amendment to the Constitution or any parliamentary or provincial Bill.
The Constitutional Court makes the final decision on whether an Act of Parliament, a provincial Act or the conduct of the President is constitutional.
It consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine Constitutional Court judges.
Supreme Court of Appeal
The Supreme Court of Appeal, situated in Bloemfontein in the Free State, is the highest court in respect of all matters other than constitutional ones. It consists of the President and Deputy President of the Supreme Court of Appeal, and 23 other judges of appeal. The Supreme Court of Appeal has jurisdiction to hear and determine an appeal against any decision of a High Court.
Decisions of the Supreme Court of Appeal are binding on all courts of a lower order, and the decisions of high courts are binding on magistrates’ courts within the respective areas of jurisdiction of the divisions.
Justice Mandisa Maya was appointed as President of the Supreme Court of Appeal in May 2017. She is the first woman to hold this position.
A high court has jurisdiction in its own area over all persons residing or present in that area. These courts hear matters that are of such a serious nature that the lower courts would not be competent to make an appropriate judgment or to impose a penalty.
Except where a minimum or maximum sentence is prescribed by law, their penal jurisdiction is unlimited and includes handing down a sentence of life imprisonment in certain specified cases.
The DoJ&CD’s legislative mandate provides for a high court in every province. The Mpumalanga High Court was completed in 2016/17, bringing the total of high courts in the country to 14:
- the Eastern Cape has four high courts located in Grahamstown, Port Elizabeth, Mthatha and Bhisho
- the Free State High Court in Bloemfontein
- Gauteng has two high courts, one in Pretoria (North Gauteng) and one in Johannesburg (South Gauteng)
- KwaZulu-Natal also has two high courts, in Pietermaritzburg and in Durban
- the Limpopo High Court in Polokwane
- the Northern Cape High Court in Kimberley
- the North West High Court in Mafikeng
- the Western Cape High Court in Cape Town.
During the 2017/18 financial year, the High Courts received 988 new cases and finalised 971 cases, which is a decrease of 9% compared to the previous financial year.
The decrease in the number of new cases received was mainly due to an increase in the number of long and intricate trials that are being conducted in the High Court.
Notwithstanding the decrease in the number of cases finalised, 49 more new cases were received during the current financial year.
The conviction rate also increased from 91% to 91.7%, exceeding the target of 87% by 5%. A comparative analysis of the performance of previous years indicates an overall improvement in the conviction rates achieved by High Court advocates.
This confirms their dedication to improve the level of service to the victims of serious crime. As depicted in the figure below, the High Court advocates improved the conviction rate with 3% from 88.8% obtained during 2013/14 to 91.7% during the 2017/18 financial year.
The number of formal bail applications in the High Courts decreased remarkably by 41% from 56 to 33. The reason for this decrease could mainly be attributed to the increase in bail applications in the lower courts before the cases are transferred to the High Courts. The number of appeals received and finalised decreased by 9%, from 2 439 to 2 225 appeal cases finalised.
Specialist high courts
The following specialist high courts exercise national jurisdiction:
- the Labour Court and Labour Appeal Court in Braamfontein, Gauteng adjudicate over labour disputes and hear labour appeals, respectively;
- the Land Claims Court, in Randburg, Gauteng hears matters on the restitution of land rights that people lost after 1913 as a result of racially discriminatory land laws;
- the Competition Appeal Court in Cape Town deals with appeals from the Competition Tribunal;
- the Electoral Court in Bloemfontein sits mainly during elections to deal with associated disputes; and
- the Tax Court in Pretoria deals with tax-related matters, including non-compliance with tax obligations.
Regional courts, magistrates’ courts and periodical courts are all lower courts. During the 2017/18 financial year, there were 33 732 criminal backlog cases in the lower courts against a target of 30 344.
Circuit local divisions (periodical courts)
These itinerant courts, each presided over by a judge of the provincial division, periodically conduct hearings at remote areas outside the seat of the high court designated by the judge president of the provincial division concerned. This is with a view to enhancing access to justice.
Regional courts are established largely in accordance with provincial boundaries, with a regional court division for each province to hear matters within their jurisdiction. There are nine regional court presidents and 351 regional court magistrates. There are more than 1 886 courtrooms dealing with district and regional court cases across the country.
The regional courts adjudicate civil disputes by virtue of the Jurisdiction of Regional Courts Amendment Act, 2008 (Act 31 of 2008)
The divorce courts were subsumed under the regional court divisions. The divorce court rules made under Section 10(4) of the Administration Amendment Act, 1929 (Act 9 of 1929), were repealed in 15 October 2010. Subsequently, regional courts started adjudicating divorce matters. This has addressed the jurisdictional challenges in terms of which litigants have to travel to remote courts to get legal redress.
In the medium to long term, the Jurisdiction of Regional Courts Amendment Act of 2008 will reduce the workload in the high courts. In this way, divorce and other family-law matters and civil disputes of an amount determined from time to time is within the jurisdiction of regional courts.
This means that attorneys have the opportunity to represent their clients in matters where they ordinarily need to appoint and brief counsel, thus reducing the cost of litigation and increasing access to justice.
During the 2017/18 financial year, the Regional Courts enrolled 53 309 new cases compared to the previous financial year, 2 241 (4%) fewer cases were enrolled compared to the 55 550 new cases enrolled during the previous financial year.
Notwithstanding this decline in new cases received, the Regional Courts still effectively impacted on serious crime by finalising 33 246 cases, comprising 30 837 verdict cases and 2 409 alternate dispute resolution mechanism cases, as depicted in the figure below. This represents a finalisation rate of 0.6 cases per court per day.
Magistrates’ courts form an important part of the judicial system, as it is where ordinary people come into contact with the justice system daily.
For this reason, that the bulk of the department’s budget and resources are concentrated here. Jointly with the Chief Justice, the department implements programmes aimed at supporting these courts. One such intervention is backlog courts.
This is with a view to widening access to justice, as more people will be able to access the magistrates’ courts where it is cheaper and faster to obtain a legal recourse compared to the high courts.
In terms of the Magistrates’ Act of 1993, all magistrates in South Africa fall outside the ambit of the Public Service. The aim is to strengthen the independence of the judiciary.
Full jurisdiction was conferred to courts in rural areas and former black townships that exercise limited jurisdiction and depend entirely on the main courts in urban areas to deliver essential justice services.
By the end of February 2018, there had been an increase of 163% of black magistrates and a 249% increase of women magistrates. The number of African female magistrates has increased from 62 in 1998 to 472 in 2018 – an increase of 661%.
Small claims courts
Small claims courts were established to adjudicate small civil claims. They were created to eliminate the time-consuming adversary procedures before and during the trial of these claims.
Small Claims Courts offer members of the public a quicker and easier way of resolving disputes that involve amounts limited to R15 000 and they can do so without the need for a legal representative.
The department continued to support and strengthen these courts. For the 2017/18 financial year, six new Small Claims Courts were established in Colenso in KwaZulu-Natal and Warden, Steynsrus, Petrus Steyn, Memel and Edenville in the Free State, bringing the total number to 411 Small Claims Courts countrywide by the end of the financial year.
In addition, nine inactive Small Claims Courts were revived between 1 April 2017 and 31 March 2018, and 14 inactive Advisory Boards were revived in the same period.
Labour courts and labour appeal courts
The labour courts have the same status as high courts. The labour courts adjudicate matters relating to labour disputes between employers and employees. Labour courts are mainly guided by the Labour Relations Act, (Act 66 of 1995), which deals with matters such as unfair labour practices. For example, dismissing an employee without giving notice.
Labour courts can order an employer, employee or union to stop committing an unfair labour practice. Labour courts are empowered to give jobs back to employees who have lost their jobs unfairly. Labour appeal courts hear appeals against decisions in labour courts and are the highest courts for labour appeals.
The right to equality is protected by law in the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) and the Employment Equity Act, 1998 (Act 55 of 1998). The two Acts work in synergy. The Equality Act of 2000 aims to:
- prevent and prohibit unfair discrimination and harassment
- promote equality
- eliminate unfair discrimination
- prevent and prohibit hate speech.
The Act also provides for:
- remedies for victims of any of the above
- compliance with international law obligations, including treaty obligations
- measures to educate the public and raise public awareness about equality.
There are traditional courts in traditional community areas in rural villages. These courts were formerly known as chief’s courts.
These courts have jurisdiction to hear certain matters at the level of magistrates’ courts. They are designed to deal with customary issues in terms of customary law.
An authorised 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 parties within his area of jurisdiction.
These courts were formerly known as chief’s courts. A person with a claim has the right to choose whether to bring it to a chief’s court or in a magistrates’ court. Any person who is not satisfied with the decision in a chief’s or headman’s court can take their matter to the ordinary courts.
The judicial functions of traditional leaders are regulated in terms of the Repeal of the Black Administration Act and Amendment of Certain Laws Act, 2005 (Act 28 of 2005).
The Traditional Courts Bill aims to affirm the values of customary law and customs in the resolution of disputes, based on restorative justice and reconciliation and to align them with the Constitution.
It seeks to regulate the structure and functioning of traditional courts. Traditional courts are still regulated by very old colonial legislation, namely the Black Administration Act of 1927. This legislation falls short in many respects. The result is that traditional courts currently have no statutory basis for its structure, functions and powers.
This lack of proper statutory regulation allows for all sorts of abuses and malpractices, bringing these important forums into disrepute.
Land claims courts
It specialises in dealing with disputes that arise out of laws that underpin South Africa’s land reform initiative.
The Land Claims Court has the same status as the high courts. Any appeal against a decision of the Land Claims Court can be lodged with the Supreme Court of Appeal, and if applicable, the Constitutional Court.
The Land Claims Court can hold hearings in any part of the country if it believes this will make it more accessible and it can conduct its proceedings in an informal manner if this is appropriate, although its main office is in Randburg.
South Africa has established community courts on a pilot basis to provide speedy resolution of certain types of community offences. These courts focus on restorative justice processes, such as diverting young offenders into suitable programmes.
These courts seek to assist the country’s court case backlog. Community courts are normal district magistrates’ courts that assist in dealing with matters in partnership with the local community and businesses.
The business community and other civil-society formations have contributed significantly to the establishment and sustainability of these courts.
Courts for income tax offenders
In October 1999, South African Revenue Service (SARS) opened a criminal courtroom at the Johannesburg Magistrate’s Office, dedicated to the prosecution of tax offenders.
The court deals only with cases concerning failure to submit tax returns or to provide information requested by SARS officials.
It does not deal with bigger cases such as tax fraud. Another SARS court operates twice a week at the Roodepoort Magistrate’s Office.
Criminal jurisdiction of the respective courts
Apart from specific provisions of the Magistrates’ Courts Act of 1944 or any other Act, jurisdiction regarding sentences imposed by district courts is limited to imprisonment of not more than three years or a fine not exceeding R60 000.
A regional court can impose a sentence of not more than 15 years’ imprisonment or a fine not exceeding R300 000.
A magistrate’s court has jurisdiction over all offences except treason, murder and rape. A regional court has jurisdiction over all offences except treason. However, the High Court may try all offences.
Depending on the gravity of the offence and the circumstances pertaining to the offender, the Directorate of Public Prosecutions decides in which court a matter will be heard and may even decide on a summary trial in the High Court.
The sentencing of “petty” offenders to do community service as a condition of suspension, correctional supervision or postponement in appropriate circumstances, has become part of an alternative sentence to imprisonment.
Sexual offences courts
Sexual offences courts were reintroduced by the DoJ&CD in August 2013 to provide specialised support services to victims of sexual offences, decrease turnaround times for finalisation of sexual offences cases and improve conviction rates in these cases.
These courts are specially designed for the delicate handling of sexual offences through the use of technology, intermediaries and an appropriate court environment for dealing with sexual offences.
An additional 17 court rooms were adapted in line with the sexual offences model and this brought the total number of court rooms adapted to 75 during the 2017/18 financial year.
Regarding child justice, 75% of preliminary enquiries for children were finalised within 90 days, against a target of 55%.
South African Judicial Education Institute (SAJEI)
The South African Judicial Education Institute Act of 2008, established the institute to provide independent judicial education for judicial officers.
The SAJEI is responsible for the formal training of magistrates and legal practitioners in this legislation and other areas of judicial work.
Its purpose is to promote the independence, impartiality, effectiveness, accessibility and dignity of the courts by providing judicial education for judicial officers. In carrying out this function, the SAJEI is primarily directed and controlled by the judiciary. The institute provides education and training for aspirant and newly appointed judicial officers, as well as ongoing legal education and training for experienced judicial officers.
Office of the Chief Justice
The mandate of the OCJ is to render support to the chief justice as the head of the judiciary, as provided for in the Constitution, read together with the Superior Courts Act of 2013.
The OCJ is also required to:
- provide and coordinate legal and administrative support to the Chief Justice
- provide communication and relationship management services, and intergovernmental and internal coordination
- develop courts administration policies
- support the development of judicial policy, norms and standards
- support the judicial function of the Constitutional Court
- support the JSC and SAJEI in the execution of their mandates.
Legislation and policies
The OCJ derives its mandate from several pieces of legislation which include the following:
- The Public Service Act of 1994, which provides for the organisation and administration of the Public Service.
- The Public Finance Management Act of 1999, which regulates financial management in the national government.
- The Superior Courts Act of 2013, which empowers the Chief Justice to exercise responsibility over the establishment and monitoring of norms and standards for the exercise of judicial functions for all courts. The Minister of Justice and Correctional Services has, in terms of this Act, delegated certain powers and functions to the Secretary-General (SG) of the OCJ for the purposes of providing administrative support functions to the Chief Justice and the Judiciary. This Act also regulates the allocation of financial resources of the OCJ and designates the SG as the Accounting Officer.
- The Judges’ Remuneration and Conditions of Employment Act of 2001, which deals with the remuneration and conditions of employment of judges.
- The JSC Act of 1994, which deals with the appointment of judges and support to the JSC.
- The SAJEI Act of 2008, which provides for further training of judicial officers.
- The Public Service Act of 1994: In March 2015, the Minister of Public Service and Administration, in terms of this Act, determined the functions relating to the administration of the Superior Courts transferred from the DOJ&CD to the OCJ.