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Theme 5

The Courts, Judiciary & Legal Profession

How are the courts structured, and who runs the legal system?

1

Court Hierarchy

The Tower Floors

SA courts are arranged in a strict hierarchy. Higher courts bind lower courts.

Floor by Floor (top to bottom)

  • CONSTITUTIONAL COURT (CC) — apex court on constitutional matters; final word on interpretation of the Constitution
  • SUPREME COURT OF APPEAL (SCA) — the highest court of appeal EXCEPT for the Constitutional Court; all High Courts bound by its decisions
  • HIGH COURTS — full bench (3 judges) and single judge; divisional seats in each province; try serious civil and criminal matters
  • MAGISTRATES' COURTS — Regional (more serious criminal matters) and District (minor civil and criminal matters)
  • SPECIALISED COURTS — Labour Court, Land Claims Court, Special Tribunal, Electoral Court, Competition Appeal Court

Since the Constitution Seventeenth Amendment Act (in force 23 August 2013), the Constitutional Court is the highest court for ALL matters — not only constitutional matters. Under s 167(3)(b) it may decide (i) constitutional matters, and (ii) any other matter, if it grants leave to appeal on the ground that the matter raises an arguable point of law of general public importance which ought to be considered by that Court.

2

Jurisdiction

Boundary Lines

Jurisdiction is the court's authority to hear a matter. A court can only hear a case within its jurisdiction.

Types of Jurisdiction

  • TERRITORIAL — the geographic area the court serves (e.g. Western Cape High Court covers the Western Cape)
  • MONETARY — limit on the value of claims the court can hear (Magistrates' Courts have rand limits)
  • SUBJECT MATTER — certain courts can only hear certain types of disputes (Labour Court, Land Claims Court)
  • APPELLATE — authority to hear appeals from lower courts

Locus Standi

A party must have standing (locus standi) to bring a matter to court. Standing requires: (1) a direct interest in the matter, (2) a justiciable issue, (3) ripeness (the dispute is actual, not hypothetical).

Under s 38 of the Constitution, a wide range of persons can approach court to enforce constitutional rights: anyone acting in their own interest, on behalf of others, as a member of a group, in the public interest, or as an association.

3

Stare Decisis

The Precedent Hall

Lower courts must follow the ratio decidendi of higher courts. This ensures certainty and equality.

What Binds Whom

  • CC decisions bind ALL other courts
  • SCA decisions bind High Courts, Magistrates' Courts
  • High Court decisions bind Magistrates' Courts in the same division
  • A court may depart from its OWN prior decisions only if satisfied the earlier decision was clearly wrong — a single judge is otherwise bound by decisions of the same division

Distinguishing a Case

A lower court can avoid following a precedent if the material facts of the current case are sufficiently different. The court "distinguishes" the precedent on its facts and applies a different rule.

Only the RATIO DECIDENDI of a case is binding. Identifying the ratio requires reading the judgment to find the legal principle the decision was actually based on. Multiple judgments in a case may make this difficult.

4

ADR

The Mediation Garden

Alternative dispute resolution (ADR) offers faster, cheaper, and more flexible options than litigation.

The Three Paths

  • NEGOTIATION — parties resolve the dispute themselves without a third party
  • MEDIATION — a neutral third party facilitates communication and helps parties reach agreement; non-binding
  • ARBITRATION — a neutral arbitrator hears both sides and makes a binding award; private and confidential

Advantages of ADR

  • Faster and less expensive than litigation
  • Private and confidential (unlike court proceedings)
  • Preserves commercial or personal relationships
  • Flexible procedures (especially in mediation)

SA courts actively encourage ADR. Rule 41A of the Uniform Rules of Court requires parties to consider mediation before proceeding with litigation. The Mediation in Certain Divorce Matters Act and the Labour Relations Act also create ADR mechanisms.

5

Civil Procedure

The Civil Arena

Civil procedure is the framework for resolving private law disputes in court.

The Civil Path

  • (1) LETTER OF DEMAND — the plaintiff warns the defendant before litigating
  • (2) SUMMONS — plaintiff issues and serves summons on defendant to appear in court
  • (3) PLEA / NOTICE OF INTENTION TO DEFEND — defendant responds to the summons
  • (4) PLEADINGS CLOSED — parties define the dispute in writing (particulars of claim, plea, replication)
  • (5) TRIAL — parties present evidence; witnesses examined and cross-examined
  • (6) JUDGMENT — court decides; may grant damages, interdict, or specific performance
  • (7) EXECUTION — if defendant does not comply voluntarily, the judgment is enforced (attachment, sale)

Civil procedure is governed by the Uniform Rules of Court (High Court) and the Magistrates' Courts Act. The standard of proof in civil matters is a BALANCE OF PROBABILITIES — more likely than not.

6

Criminal Procedure

The Criminal Arena

Criminal procedure governs the investigation, prosecution, and punishment of crimes.

The Criminal Path

  • (1) INVESTIGATION — SAPS investigates; evidence gathered
  • (2) ARREST — accused arrested with or without a warrant
  • (3) FIRST APPEARANCE — accused brought before court within 48 hours (s 35(1)(d))
  • (4) BAIL APPLICATION — accused may apply for bail
  • (5) CHARGE — formal charge read to accused; plea recorded
  • (6) TRIAL — state leads evidence; accused cross-examines; accused may lead own evidence
  • (7) VERDICT — guilty / not guilty
  • (8) SENTENCE — court imposes punishment if guilty
  • (9) APPEAL — accused may appeal conviction or sentence to a higher court

The Constitution (s 35) guarantees accused persons' rights: the right to be informed of the charge, to remain silent, to have an attorney, to a fair trial, and to be presumed innocent until proven guilty beyond reasonable doubt.

7

Evidence

The Evidence Room

Evidence law determines what information can be placed before the court and how.

Key Concepts

  • ADMISSIBILITY — evidence must be legally admissible (relevance, no exclusionary rule)
  • RELEVANCE — evidence must logically tend to prove or disprove a fact in issue
  • BURDEN OF PROOF — who must prove the case (prosecution in criminal; plaintiff in civil)
  • STANDARD OF PROOF — how convincingly the burden must be discharged (BRD criminal; BoP civil)
  • HEARSAY — out-of-court statements to prove the truth of the content; generally excluded

A key constitutional development: evidence obtained in violation of an accused's rights (illegal search, coerced confession) may be excluded under s 35(5) of the Constitution if admitting it would render the trial unfair or be detrimental to the administration of justice.

8

Attorneys & Advocates

The Two Professions

SA has two main branches of the legal profession: attorneys and advocates.

Attorneys

  • Admitted by the High Court after completing a law degree and a period of articles (practical training)
  • Historically known collectively as the SIDE BAR — as distinct from the Bar, which is the advocates' branch
  • Deal directly with clients — a client's first point of contact with the legal system
  • Rights of appearance in Magistrates' Courts and (with certain exceptions) in High Courts
  • Regulated by the Legal Practice Council (LPC) under the Legal Practice Act 28 of 2014

Advocates

  • Admitted to the Bar after a law degree and pupillage
  • Specialists in court appearances and complex legal opinions
  • Traditionally briefed by attorneys rather than dealing directly with clients
  • General Council of the Bar; Silks (Senior Counsel) appointed by the President

The Legal Practice Act 28 of 2014 restructured the profession. All legal practitioners (attorneys and advocates) are now regulated by the Legal Practice Council. The distinction between attorneys and advocates is maintained but the Act creates more flexibility in practice.

9

Judicial Officers

The Bench

Judges and magistrates are judicial officers who adjudicate disputes independently.

Judges

  • Judges of the Constitutional Court, SCA, and High Courts appointed by the President on advice of the JSC
  • The Judicial Service Commission (JSC) interviews and recommends candidates
  • Judges hold office until age 70 — but a judge who has not completed 15 years' active service continues until they do, or until age 75, whichever comes first
  • Constitutional Court judges serve a 12-year non-renewable term, or until age 70 (s 176(1))
  • Protected by security of tenure and judicial independence (s 165)

Magistrates

  • Appointed by the Magistrates Commission
  • Preside in Magistrates' Courts (District and Regional)
  • Not security-of-tenure in the same way as judges historically

Section 165 of the Constitution: the courts are independent; subject only to the Constitution and the law; no person or organ of state may interfere with the functioning of the courts. Judicial independence is a cornerstone of the rule of law.