Home News South African Justice System (South African Legal System)

South African Justice System (South African Legal System)

South African Justice System: 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 courts.

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.

Access to justice will also be enhanced over the medium term by the
employment of additional prosecutors. Some 150 aspirant prosecutors, 39
regional court prosecutors and 19 senior public prosecutors will be
appointed between 2016/17 and 2018/19.

The greater prosecuting capacity is expected to increase the number
of criminal cases finalised, including those finalised through
alternative dispute resolution mechanisms, by almost 13 000 over the
medium term.

The organisation planned to increase the number of civil matters
finalised from 53 622 in 2015/16 to 54 431 in 2018/19, and the number of
legal matters finalised per year from 446 853 in 2015/16 to 453 590 in
2018/19.

According to Statistics South Africa’s Victims of Crime Survey
2014/15, 54,4% were satisfied with how the courts were performing.

In 2015/16, conviction rates in all courts improved in comparison to the previous year.

The high courts achieved an 89,9% conviction rate against the target
of 87%, the regional courts achieved a 77,7% conviction rate against the
target of 74%, and the district court achieved a 94,3% against a target
of 88.

Legal practitioners – South African Justice System

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.

According to Law Society of South Africa, in 2016 some 6 088 of the
24 330 attorneys in the country were black men and 3 604 were black
women.

In 2016/17, the DoJ&CD paid about R781 million to counsel, 79% of
whom were historically disadvantaged individuals and 26% female.

Constitutional Court – South African Justice System

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 – South African Justice System

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.

High courts – South African Justice System

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.

As at 31 December 2016, the NPA had maintained a conviction rate of 91% in the high courts.

Specialist high courts – South African Justice System

The following specialist high courts exercise national jurisdiction:

  • Labour Court and Labour Appeal Court in Braamfontein, Gauteng
    adjudicate over labour disputes and hear labour appeals, respectively;
  • 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;
  • Competition Appeal Court in Cape Town deals with appeals from the Competition Tribunal;
  • Electoral Court in Bloemfontein sits mainly during elections to deal with associated disputes; and
  • Tax Court in Pretoria deals with tax-related matters, including non-compliance with tax obligations.

Lower courts – South African Justice System

Regional courts, magistrates’ courts and periodical courts are all lower courts. There are 714 lower courts in South Africa.

Circuit local divisions (periodical courts) – South African Justice System

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

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.

As at 31 December 2016, the NPA maintained a conviction rates of 80% in regional courts.

Magistrates’ courts – South African Justice System

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.

Through the construction of courts, the right of everyone to have any
dispute resolved by the application of the law in a fair public hearing
before a court is guaranteed.

There are 763 magistrates’ courts countrywide. The magistrates’
courts prioritised for completion over the medium term are: Mamelodi,
Port Shepstone, Plettenberg Bay, Dimbaza, Booysens, Richards Bay and
Bityi. This is at a total projected cost of R1,4 billion over the Medium
Term Expenditure Framework 2015 – 2018 (MTEF).

Building more courts will be supplemented by rationalising
magisterial districts and aligning the jurisdiction of magistrates’
courts with municipal boundaries to ensure that all people can access
justice equitably wherever they live.

By April 2017, about 48 senior magistrates had been appointed in various courts across the country.

The appointment of the new candidates, who assumed their new roles in
May 2017, was in line with government’s commitment to transform the
judiciary. Of the 48 appointed candidates, 47 were black and 23 were
women.

As at 31 March 2017, out of the total of 1 576 active magistrates, 644 were women.

Small claims courts – South African Justice System

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.

The limit of cases involving civil claims in these courts is R15 000. By May 2017, there were 405 small claims courts.

The vast majority of the new courts and places of sitting are in rural areas and former black group areas.

The goal of having a small claims court in every magisterial district
is in sight. Gauteng and Mpumalanga have already achieved this.

The number of people enjoying the benefits of access to justice through small claims courts has increased steadily.

Establishing these courts depends partly on the number of dedicated
citizens who volunteer their services as commissioners or as advisory
board members.

The small claims court model is an effective dispute resolution
mechanism, which contributes towards the realisation of the DoJ&CD’s
mandate to ensure access to justice for all.

Labour courts and labour appeal courts – South African Justice System

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.

Equality courts – South African Justice System

The right to equality is protected by law in the Promotion of
Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of
2000) [PDF] and the Employment Equity Act, 1998 (Act 55 of 1998) [PDF].
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.

Traditional courts – South African Justice System

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.

A person with a claim has the right to choose whether to bring it to a
traditional court or in a magistrate’s court. Any person who is not
satisfied with the decision in a traditional 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, which was submitted to Parliament in
2016/17, 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.

Land claims courts – South African Justice System

It specialises in dealing with disputes that arise out of laws that underpin South Africa’s land reform initiative.

These are the Restitution of Land Rights Act, 1994 (Act 22 of 1994),
the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996) and the
Extension of Security of Tenure Act, 1997 (Act 62 of 1997).

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.

Community courts – South African Justice System

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.

Thirteen community courts have been established: Hatfield, Hillbrow
and Protea (Lenasia) in Gauteng; Mthatha in the Eastern Cape;
Thohoyandou in Limpopo; Kimberley in the Northern Cape; Durban (Point)
and KwaMashu in KwaZulu-Natal, Bloemfontein and Phuthaditjhaba in the
Free State; and Fezeka (Gugulethu), Mitchells Plain and Cape Town in the
Western Cape.

Lessons from the pilot sites will assist in finalising the policy and
legislative framework that will institutionalise community courts as a
permanent feature of the judicial system.

Courts for income tax offenders – South African Justice System

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 – South African Justice System

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.

In 2016/17, 11 regional courts were upgraded to sexual offences courts, bringing the total to 59 nationwide.

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.

Government had deployed 161 intermediaries spread over all dedicated
sexual offences courts and also installed 324 closed circuit TV systems,
49 one-way mirrors and established 222 child testifying rooms.

The courts have been labelled as responsive and effective, as they
reduce secondary victimisation, improve the skills of court personnel,
speed up the finalisation of cases and contribute to their efficient
prosecution and adjudication.

The number of court rooms adapted in line with the model is projected
to increase with eight (in addition to the existing 47) in 2016/17 and
with 15 in 2019/20.

The rebirth of specialised courts has contributed to the increase of the conviction rate in sexual offences.

By March 2016, the conviction rate in sexual offences had increased
slightly from the previous year, from 69% to 70%, with 7 098 sexual
offences crime verdict cases with 4 978.

A multidisciplinary approach followed by newly established provincial
structures with stakeholders from the DoJ&CD, LASA, the SAPS, the
Department of Health and the NPA seems to have contributed to the
improvements in handling sexual offences cases.

In June 2017, the High Court in Johannesburg lifted a 20-year “expiry
date” on prosecuting sexual offences, declaring it unconstitutional.

In 2016/17, there were 18 magisterial districts providing victim
support services in terms of the victims charter. The department aims to
increase this number to 36 in 2019/20.

Transforming the judiciary – South African Justice System

The department has made significant strides in its quest to transform the judiciary.

As at March 2017, there were 244 judges in active service in South
Africa, of which 87 were women. Regarding racial demographics, there
were 39 black judges, 11 coloured judges, 11 Indian judges and 25 white
judges.

The limited number of women who advance to the bench has been
attributed to the low number of female legal practitioners in comparison
to their male counterparts.

At the end of April 2016, of the 2 826 members registered as
practising advocates on the roll of the General Council of the Bar, only
742 were women.

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 -South African Justice System

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.

In the first five months of 2016/17, 50% of the cases at the
Constitutional Court and 53% of the cases at the Supreme Court of Appeal
were finalised, each against annual targets of 80%.

Performance on the finalisation of criminal cases with verdicts in
the high courts was below the annual target of 64%, mainly because some
of the more complex cases took longer than anticipated to be finalised.

Some 66% of the civil cases enrolled in the first five months of
2016/17 were finalised, against the annual target of 54%. This was as
result of enhanced practice directions as issued by the judges president
and the deputy judges president.

Regarding the performance of specialised courts, 73% of cases in the
Land Claims Court and 52% of cases in the Labour Court were finalised
against the annual target of 54%. The over-achievement related to land
claims was due to enhanced case-flow management practices, while the
underachievement on the labour court side was due to the more complex
and drawn-out nature of the cases.

Regarding the number of criminal cases on the backlog roll in the
high courts, there were 155 cases on the backlog roll against an annual
target of 156 cases. The overachievement on this target was a result of
ringfenced backlog cases that were prioritised for finalisation.

Legislation and policies – South African Justice System

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.

Budget and funding – South African Justice System

In 2016/17, the OCJ’s allocated budget amounted to R1,785 billion. Of
this amount, R920,057 million was allocated to judges’ remuneration and
benefits. This means that the OCJ had an operating budget of R864,99
million.

Over the medium term, the OCJ will focus on improving the efficiency
and effectiveness of the court system, specifically through implementing
and monitoring judicial norms and standards and facilitating the
appointment and training of judicial officers.

This focus supports the NDP’s vision to strengthen judicial
governance and the rule of law by accelerating reforms towards
judiciary-led, independent court administration and by dramatically
scaling up judicial training.

During 2016/17, the department had 2 645 posts (including 243
judicial officers), which were all funded and filled. Judicial officers
included justices for the peace, magistrates and
judges.

Over the medium term, the department will fund the operationalisation
of the Superior Courts Act of 2013, including creating capacity in
judge president offices to coordinate judicial functions and ensure that
judicial norms and standards are implemented, monitored and reported
on.

The department will receive increased funding of R34,5 million in
2017/18 and R36,3 million in 2018/19 in the Judicial Support and Court
Administration programme for this work.

Excluding direct charges, the bulk of the department’s spending is in
this programme, accounting for R2,3 billion or 38,3% of the total
departmental budget of R5,9 billion over the medium term.

Because the work in this programme is labour-intensive, most of the
spending is on compensation of employees and related goods and services
items.

The number of personnel in the programme was expected to increase
from 1 709 in 2016/17 to 1 793 in 2018/19, resulting in average annual
growth of 12,3% in expenditure on compensation of employees over the
period.

This increased capacity would enable the department to increase the
percentage of cases finalised with a verdict from 64% in 2016/17 to 70%
in 2018/19, while reducing the number of cases on the backlog roll for
more than 12 months from 156 in 2016/17 to 56 in 2018/19.

The department supports the JSC to recommend candidates for judicial
officers by providing the commission with secretariat and administrative
support services.

All appointments of judicial officers are public and therefore 100%
transparent, to enhance public trust in the judiciary. Over the medium
term, R82,3 million is budgeted for the work of the commission under the
JSC subprogramme in the Judicial Support and Court Administration
programme.

Judicial officers receive continuous training from the SAJEI. Some
225 judicial education courses are to be provided over the medium term,
including on new legislation on domestic violence, maintenance, and
immigration.

For facilitating the appointment and training of judicial officers,
the department will receive increases of R17,2 million in 2017/18 and
R17,9 million in 2018/19 in the Judicial Education and Research
programme. The programme’s budget was expected to increase from R37,8
million in 2016/17 to R60,1 million in 2018/19.

The bulk of the spending is in the SAJEI subprogramme, which accounts for 83,9% of the programme’s budget over the medium term.

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