The Constitutional Court This court, the highest in South Africa on constitutional matters, was born out of the country’s first democratic Constitution in 1994. In an acclaimed building at Constitution Hill, the 11 judges stand guard over the Constitution and protect everyone’s human rights.
The Constitutional Court only makes decisions about issues that have to do with the Constitution. It is also the highest court in the land since its decisions cannot be changed by any other court.
When you are not satisfied with what the High Court has decided you can go to the Constitutional Court only if it has to do with constitutional issues. Normal appeal matters are however dealt with at the Supreme Court of Appeal.
Supreme Court of Appeal
The Supreme Court of Appeal is based in Bloemfontein in the Free State. Except for the Constitutional Court, it is the highest court in South Africa and it only deals with cases sent to it from the High Court.
Except for the Constitutional Court, no other court can change a decision of the Supreme Court of Appeal. Only the Supreme Court of Appeal can change one of its own decisions. Three to five judges listen and decide on all cases of the Supreme Court of Appeal. The final decision of the Supreme Court of Appeal is the one supported by most of the judges listening to the case.
Then there are High Courts which used to be called �The Supreme Courts�. They listen to any case which is too serious for the Magistrate�s Court or when a person or organization goes to the court to change a decision of a Magistrate�s Court, which means appealing a case.
The High Court divisions have �jurisdiction� � the right to hear a case � over defined provincial areas in which they are situated, and the decisions of the High Courts are binding on Magistrate�s Courts within their areas of jurisdiction. They usually only hear civil matters involving more than R100 000, and serious criminal cases. They also hear any appeals or reviews from lower courts (Magistrates� courts) which fall in their geographical jurisdiction. The High Court usually hears any matter involving a person�s status (for example, adoption, insolvency etc.).
Important officers in a High Court Division:
- The Registrar of the High Court – The functions of a registrar are mainly administrative. The registrar also has semi-judicial duties, e.g. issuing civil process (summonses, warrants, subpoenas) and so on. Other important duties of the registrar are that of taxing-master for that particular High Court division. Registrars also compile case lists, arrange available courts, lend assistance to judges in general and keep records.
- The Family Advocate– The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship of children. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties� circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.
- The Master of the High Court– The Master’s Branch is there to serve the public in respect of:
- Deceased Estates;
- Liquidations (Insolvent Estates);
- Registration of Trusts;
- Tutors and Curators; and
- Administration of the Guardian�s Fund (minors and mentally challenged persons).
- The Sheriff of the court – The Sheriff is an impartial and independent official of the Court appointed by the Minister of Justice and Constitutional Development who must serve or execute all documents issued by our courts. These include summonses, notices, warrants and court orders.
- The Directors of Public Prosecutions – are responsible for all the criminal cases in their provinces, so all the prosecutors are under their control. The police bring information about a criminal case to the Director of Public Prosecutions or his/her represenatative prosecutors. The Director of Public Prosecutions or his/her representative prosecutorthen decides whether there is a good reason to have a trial and whether there is enough information to prove in court that the person is guilty.
- The State Attorney – The State Attorney’s Division of the Department of Justice functions like an ordinary firm of attorneys, except that its clients are the different departments of government and not private individuals. The state attorney’s major function is to protect the interests of the State by acting for all government departments and administrations in civil cases, and for officials sued in their official capacity.
There are at the moment fourteen provincial divisions of the High Court. The present fourteen provincial divisions of the High Court are situated in:
- Eastern Cape High Court (Bhisho)
- Free State High Court (Bloemfontein)
- Western Cape High Court (Cape Town)
- KwaZulu-Natal High Court (Durban)
- Eastern Cape High Court (Grahamstown)
- South Gauteng High Court (Johannesburg)
- Northern Cape High Court (Kimberley)
- KwaZulu-Natal High Court (Pietermaritzburg)
- Eastern Cape High Court (Port Elizabeth)
- North Gauteng High Court (Pretoria)
- Limpopo High Court (Thohoyandou)
- Eastern Cape High Court (Mthatha)
- North West High Court, Mafikeng (Mmabatho) and
- Polokwane Circuit Court of the North Gauteng High Court, Pretoria
Circuit Courts are also part of the High Court. They are sit at least twice a year, moving around to serve more rural areas. They can be contacted through the High Court.
Special Income Tax Courts
The Special Income Tax Courts sit within provincial divisions of the High Court and consists of a judge of the High Court assisted by an accountant of not less than 10 years� standing, and a representative of the business community.
This court deals with any disputes between a taxpayer and the South African Revenue Service, where the dispute involves an income tax assessment of more than R100 000. Appeals against its decisions are made directly to the Supreme Court of Appeal.
Tax disputes involving an assessment of less than R100 000 go to the Tax Board. The Tax Board is chaired by an attorney, advocate or accountant who works in the private sector and is specifically appointed by the President to assist as chairman of the Board. You can contact the Special Income Tax Court through the High Court and the Tax Board through the South African Revenue Service.
Labour Courts and Labour Appeal Courts
The Labour Courts have the same status as a High Court. They adjudicate matters relating to labour disputes between an employer and employee. It is mainly guided by the Labour Relations Act which deals with matters such as unfair labour practices. The Labour Appeal Court hears appeals against decisions in the Labour Court and this is the highest court for labour appeals.
Previously there were three stand-alone Divorce Courts (Central, North Eastern and the Southern Divorce Court) which heard divorce related matters exclusively. These courts were integrated into the Regional Civil Jurisdiction by the Jurisdiction of Regional Courts Amendment Act, 2008 (Act 31 of 2008). There is now concurrent jurisdiction between with the 63 Regional seats and their relevant High Courts. This initiative facilitates greater access to courts to hear divorce matters and the parties can now choose the court that is closest to the area where they live to initiate divorce related matters.
Land Claims Court
The Land Claims Court specializes 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, the Land Reform (Labour Tenants) Act, 1996 and the Extension of Security of Tenure Act, 1997.
The Land Claims Court has the same status as the High Courts. Any appeal against a decision of the Land Claims Court lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The Land Claims Court can hold hearings in any part of the country, if it thinks this will make it more accessible and it can conduct its proceedings in an informal way if this is appropriate, although its main office is in Randburg.
The Magistrates� Courts are the lower courts which deal with the less serious criminal and civil cases. They are divided into regional courts and district courts. In Criminal Courts the state prosecutes people for breaking the law. Criminal Courts can be divided into two groups:
Regional Magistrate’s Courts
The Regional Magistrates� Courts at present only deal with criminal cases whereas the district Magistrates� Courts deal with criminal and civil cases. The magistrate makes the decisions in a Magistrate’s Court sometimes with the support of lay assessors.
Magistrate’s Courts can be divided into either criminal courts or civil courts.
The Regional Magistrates� Courts deal with more serious cases than the ordinary Magistrates� Courts – for example, murder, rape, armed robbery and serious assault.
In terms of the Criminal Law (Sentencing) Amendment Act (No 38 of 2007) a Regional Magistrate�s Court can sentence a person who has been found guilty of offences that include murder or rape to imprisonment for life. The Court can also sentence people who have been found guilty of certain offences such as armed robbery or stealing a motor vehicle to prison for a period up to 20 years. A Regional Magistrate�s Court can impose a maximum fine of R300 000.
The district courts try the less serious cases. They cannot try cases of murder, treason, rape, terrorism, or sabotage. They can sentence a person to a maximum of 3 years in prison or a maximum fine of R100 000.
Ordinary Magistrate’s Courts (also called District Courts)
The ordinary Magistrates� Courts can hear civil cases when the claims are for less than R100 000. They cannot deal with certain matters, such as:
- arguments about a person’s will;
- matters where it is asked if a person is mentally sane or not.
The most serious criminal matters are heard in the High Court. There are also a number of magistrates� courts that are specialised to be better able to deal with certain types of matters, such as the children�s courts, sexual offences courts, etc.
Small Claims Courts
Small Claims Courts have jurisdiction to hear any civil matter involving a capped amount published via a Government Gazette. These courts are used to settle minor civil disputes and claims between parties without representation by an attorney, in an informal manner.
There is no magistrate or judge in the Small Claims Court, but the presiding officer is a Commissioner who is usually a practicing advocate or an attorney who acts as a commissioner free of charge. You can contact your nearest Small Claims Court through your nearest Magistrate�s Court.
Equality Courts have been set up to help someone who believes that they have suffered unfair discrimination, hate speech or harassment. The Equality courts were extended to the magistrate�s courts primarily to bring access to justice to the marginalized and vulnerable citizens to assert their rights.
Anyone can take a case to the Equality Court, even if you are not directly involved in what happened. This means a complaint to the court can be made against someone or an organisation you believe have failed to respect the rights of another person.
Proceedings in the High Courts are costly for the majority of our people however, in the equality courts, legal representation is not a prerequisite and there are no cost incurred when lodging a complaint, thus making it easy to access. In terms of the Equality Act the South African Human Rights Commission and Commission on Gender Equality are mandated, to assist complainants in taking their matters to the Equality Courts.
The Maintenance Court is situated in the Magistrate’s Court. There is a Maintenance Officer in charge of the Maintenance matter. It is not necessary to have an attorney to claim maintenance. The Maintenance Officer assists with application for Child Maintenance. Follow this link for more information on how to claim maintenance.
Sexual Offences Courts
In order to combat sexual violence, especially against women and children, the Department of Justice and Constitutional Development (DOJ&CD) reintroduced the Sexual Offences Courts in the country with the aim to:
- Reduce secondary victimisation often suffered by the victims when they engage with the criminal justice system, particularly the court system;
- Reduce the turnaround time in the finalisation of these cases; and
- Improve the conviction rate in sexual offence cases.
Follow this link for more information on Sexual Offences Courts.
A Children�s Court is a special court which deals with issues affecting children. Every Magistrate�s Court in South Africa is a Children�s Court.
The children�s court also takes care of children who are in need of care and protection and makes decisions about children who are abandoned, neglected or abused. Any person/ child may approach the clerk of the children�s court when he/ she believe that a child may be in need of care and protection. The Children�s Court can place a child in safe care or refer the child and/or the parent to services that they may require.
Amended: 24 Oct 2019 as per the content of “Let’s Talk Justice” Season 5, Episode 12.