Understanding the legal maze in SA

In light of the high profile cases of Oscar Pistorius and Shrien Dewani that have taken to the South African courtrooms recently we take a look at the South African judicial system to give you some insight as to how it works.

Judicial Authority

• The judicial authority of the Republic is vested in the courts.
• The courts are independent and subject only to the Constitution and the Law, which they must apply impartially and without fear, favour or prejudice.
• No person or organ of state may interfere with the functioning of the courts.
• Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
• An order or decision issued by the courts binds all persons to whom and organs of state to which it applies.

Structure of the courts 

Section 34 of the Bill of Rights in our Constitution says everyone has the right to have any legal problem or case decided by a court or an independent body.

The courts are used to make people obey the law. They do this by deciding disputes brought to them.

The ordinary courts are:

• Constitutional Court
• Supreme Court of Appeal
• High Courts
• High Courts in different provinces and local divisions, for example Witwatersrand Local Division
• Regional Magistrate’s Courts
• Ordinary Magistrate’s Courts
• Small Claims Courts
• Community courts and courts of Chiefs and Headmen 

The Supreme Court of Appeal’s position in the justice system

The Supreme Court of Appeal of South Africa is the successor to the Appellate Division, first established in 1910 when the Union of South Africa was created [History and Background]. The name of the court was changed by the Constitution of 1996.

According to the Constitution, the Supreme Court of Appeal –

• functions only as a court of appeal
• may decide any matter on appeal and,
• is, except for constitutional matters, the highest court of appeal.

The Supreme Court of Appeal has constitutional jurisdiction but the Constitutional Court –

• is the highest court in all constitutional matters, and
• may decide only constitutional matters and connected issues. 

The Supreme Court of Appeal may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.

The composition, authority and jurisdiction of the court

The Supreme Court of Appeal has jurisdiction to hear and determine an appeal against any decision of a High Court.

Decisions of the Court are binding on all lower courts, and the decisions of the high courts are binding on Magistrates’ Courts within the respective areas of jurisdiction of the high courts.

Whereas previously the head of the Appellate Division was the chief justice, this is no longer the case. The Chief Justice of South Africa is now the head of the Constitutional Court.

The seat of the Supreme Court of Appeal is at Bloemfontein. Provision exists for a session of the court at another place when by reason of exceptional circumstances it is expedient to hold its sitting there. The court’s process runs throughout the Republic and its judgments and orders have effect and are executed in the areas of other courts as if they were original judgments or orders of those courts.

The Court sits in panels of five or three Judges, depending on the nature of the appeal. The composition of the panels differs for each case. The senior judge on each panel presides in that case. There may be more than one judgment in a case if there is a difference of opinion. The decision of the majority is the decision of the Court.

Statutory Bodies

These are bodies that have the authority to assist in resolving legal disputes. These bodies are established in terms of legislation and get their authority from legislation. It is usually cheaper to use these bodies than the courts and disputes are resolved much faster.

• CCMA established in terms of Labour Relations Act
• Housing Rental Tribunal established in terms of Housing Rental Act
• Pension Funds Adjudicator established in terms of the Pension Funds Act

Who works in the legal system?

Judges

Judges are appointed by the President. Judges hear and decide cases in the Constitutional Court, Supreme Court of Appeal and High Courts.

Assessors

In serious criminal cases in the High Courts, two assessors are appointed to help the judge. Assessors are usually advocates or retired magistrates or experts in a particular area such as children. They sit with the judge during the court case and listen to all the evidence presented to the court. At the end of the court case they give the judge their opinion. The judge does not have to listen to the assessors’ opinions but it usually helps the judge to make a decision.

Master of the High Court

The Master’s Branch of the High Court is there to serve the public in respect of:

• Deceased Estates
• Liquidations (Insolvent Estates)
• Registration of Trusts
• Tutors and Curators
• Administration of the Guardian’s Fund (minors and mentally challenged persons)

Magistrates

Magistrates are appointed by the Minister of Justice. They hear and decide cases in the Magistrate’s Courts.

Lay assessors

Lay assessors are recruited through community organisations, so that the organisations can identify people who are respected by their communities. They are given basic training on legal procedures, but are not trained as attorneys nor magistrates. They help the magistrate reach a fair decision by providing background information to the issues in a case and giving the broader community perspective.

Director of Public Prosecutions

At each High Court, there is a Director of Public Prosecutions (DPP) with a staff of assistants. (DPPs used to be known as Attorney Generals.) The DPPs are appointed by the Minister of Justice.

The DPPs are responsible for all the criminal cases in their province, so all the prosecutors are under their control. The police bring the information about a criminal case to the DPP. The DPP then decides whether there is good reason to have a trial, if there is enough information to prove in court that the person is guilty.

National Director of Public Prosecutions

The office of the National Director of Public Prosecutions, was established on 1 August 1998, in terms of section 179(1) of the Constitution.

The National Director of Public Prosecutions (NDPP) is in charge of the National Prosecuting Authority (NPA) which is responsible for managing the performance of Directors of Public Prosecutions (DPPs), Special Directors and other members of the Prosecuting Athority

Each High Court has a Director of Public Prosecutions (DPP) with a staff of assistants. The DPPs are responsible for all the criminal cases in their province, so all the prosecutors fall under their control. The police bring the information about a criminal case to the DPP. The DPP then decides whether there is enough evidence for a trial and to prove in court that the person is guilty.

Prosecutors

Prosecutors are employed by the National Prosecuting Authority. The prosecutor represents the state in a criminal trial against people who are accused of committing a crime. Before the trial, the prosecutor works with the South African Police Services to find out all the facts about the case, and to prepare state witnesses who saw what happened or who have other information. The prosecutor decides whether to prosecute the case or not.

The prosecutor then presents all this information in court and tries to convince the judge or magistrate that the accused person is guilty. The prosecutor does this by asking the state witnesses to tell their stories. The prosecutor also cross-questions the witnesses that the accused person brings to court, to try and disprove what these witnesses say. The prosecutor may divert cases to rehabilitate, especially juvenile first offenders.

Attorneys and advocates

Every person is entitled to appear personally before a court to plead a cause or to raise a defence. However due to the complexity of legal issues and the specific manner in which court applications have to be submitted to the court, It is sometimes best to hire an attorney and advocates.

Public defenders

If a person who is accused in a serious criminal case cannot afford to pay for their own attorney, their case will be taken up by a public defender. Public defenders are attorneys who are paid for by Legal Aid South Africa. The aim of Legal Aid South Africa is to make legal representation available to poor and indigent people at the government’s expense.

Paralegals or advice-givers

Para-legals are people who have had non-degree training or informal training so they cannot act in formal legal proceedings. They give advice to people and organisations on different aspects of the law, including advice on their rights and ways of protecting their rights.

Trials, appeals and reviews

What is a trial?

A trial is a court hearing in a Magistrate’s Court or a High Court, called the trial court.

The magistrate or judge listens to all the people who have information about the case. This information is called the verbal or oral evidence. The court also looks at the physical evidence, for example, a knife or a letter. These are called exhibits in the trial.

The magistrate or judge listens to the evidence from both sides. If it is a criminal trial, the magistrate or judge listens to the state and its witnesses as well as the case of the accused and the witnesses called by the accused. The magistrate or judge then makes a decision, called a judgment.

What is an appeal?

If you lose a trial, you can appeal. This means you ask a higher court to change the decision of the trial court.

Usually this appeal court will not listen to any new evidence. It will only read the report from the lower court to see what evidence was given. So it is very important to say everything you want to say in the first court that hears your case.

A case in the Magistrate’s Court can go on appeal to the nearest High Court, and then to the Supreme Court of Appeal. A case heard in a High Court can go directly on appeal to the Supreme Court of Appeal. The Supreme Court of Appeal only listens to appeals – it does not listen to any trials.

What is a review?

A higher court can also be used for a review. If you think proceedings in a Magistrate’s Court or High Court were unfair (for example, the magistrate or judge was biased), or not according to the law, you can take the case on review to a higher court.

Settling disputes outside courts

Many legal problems can be settled without going to court and this is usually a much cheaper option for settling disputes. Different ways oftrynig to solve disputes without going to any of the courts include:

Negotiation

Negotiation means that people who have a problem talk to each other about their problem and try to solve it by coming up with a solution which suits both sides.

Mediation

Mediation happens when people with a problem agree to have a third person act as a go-between to help them settle their problem. For example: two neighbours who are always fighting about the noise coming from each other’s houses can bring in a mediator who will help them reach a compromise.

The mediator does not act as a judge and does not make a decision which the parties must follow.

Arbitration

Arbitration takes place when people who have a problem agree to have a third person (called an arbitrator) to listen to their arguments and make a decision which both parties agree in advance to follow. So the arbitrator acts like a judge. An arbitration is quicker and less formal than a court case.

http://www.justice.gov.za/sca/aboutsca.htm

http://www.paralegaladvice.org.za/docs/chap05/02.html