Law is a body of rules governing human behaviour that is recognised and enforced by the state/
government.
Therefore if a law is disobeyed, the state will punish the offender or provide the other party with remedy.
Law is therefore different from the rules of sport or religion – if a rule of sport is broken the state does not
get involved.
Does law = morality?
Laws should be moral and just.
Laws are not always moral and just. – Apartheid
If you do not agree with a law because of your own morality or religion, do you have to follow it?
o Yes.
Every person has to follow the law.
Definition of the state:
State = government and it is divided into three areas:
o The legislature: makes law, that is parliament
o The executive: enforces the law, that is the President, ministers and civil service – police
o The judiciary: applies and interprets the law that is the courts – magistrates or judges
Parliament passes the drug trafficking act which makes it illegal to deal in drugs.
Mr A is arrested by the police because he is found driving a car that has 35kg of cocaine in the boot.
Mr A will have a trial that will be heard by the judge.
The judge will apply and interpret the law – i.e. find him guilty or not guilty
2) The Judicial System
Diagram of court structure:
CONSTITUTIONAL COURT
SUPREME COURT OF APPEAL
(BEFORE 1994 KNOWN AS THE APPELATE DIVISION)
HIGH COURTS
MAGISTRATES COURTS
Regional Magistrates’ Courts (=same level) District Magistrates’ Courts
,In addition:
o Small Claims Courts
o National Consumer Tribunal
o Consumer Courts
o Rental Housing Tribunal
o Specialist Courts (e.g. Labour Courts)
Definition of Appeal:
Taking a case from an inferior court to a higher court in the hope of getting a different judgement
In the other words, it is used as a mechanism for getting a second opinion on the judgement of the inferior
court.
Definition of Jurisdiction:
The powers that a court has, for example, a court with criminal jurisdiction has the power to hear
criminal matters.
The geographical area over which the court has power. For example, the Western Cape High Court
has jurisdiction over the Western Cape.
2.1) The Constitutional Court (CC)
o South Africa has a written constitution.
o Constitution is an act of parliament – it is a book and divided into chapters.
o It protects rights known as constitutional rights such as the right to life, the right to dignity, the
right to freedom of expression, the right to education, freedom of religion, healthcare and
housing.
o These rights are contained in Chapter 3 of the Constitution which is called the Bill of Rights.
o In the other chapters, the constitution deals with how the country must be governed
Matters which relate to the protection of human/constitutional rights and how the country must be
governed are known as constitutional matters.
(Murder of people not a constitutional matter but cases of genocide would be)
Constitutional Court can only decide constitutional matters and matters which relate to a “point law
of general public importance”.
Example – (point law of general public importance): In 2016, the SCA handed down a judgement
that an owner of a property is liable for any municipal debt on that property going back 30 years
even if they didn’t own a property at the time. If someone wanted to appeal this decision, they
could take it to the constitutional court as a matter of general public importance.
Does not hear ordinary matters/cases such as a murder cases, theft or a case where a landlord wants
to sue his tenant for outstanding rentals.
In most situations, cases are brought on appeal to the Constitutional Court, but it can also be a court
of first instance.
,Court of first instance/trial court:
The case starts in this court.
Most important thing: Constitutional Court can only hear cases and appeals of a constitutional nature
or cases of general public importance (but other courts can also hear these cases see later)
Only Constitutional Court can hear certain matters – i.e. it has exclusive jurisdiction over:
Example: Case or matter regarding Amendment to the constitution
The court sits in Johannesburg and has jurisdiction over the whole country.
Has 11 judges. At least 8 judges must be “on the bench” to hear any matter.
11 judges would be a “full bench”
2.2) Supreme Court of Appeal (SCA)
o Prior to 1994 = Appellate Division
o Purely an appeal court – can never be a court of first instance or a trial court.
o It can hear all kinds of matters/cases – i.e. criminal, civil and constitutional
o It is the final court of appeal in all matters except constitutional matters (and matters of general
public importance).
o But it can hear constitutional appeals – just not final appeal court for constitutional matters.
Example:
A thief is found guilty in the magistrates’ court
Does not want to go to jail – he appeals to the high court.
High court finds him guilty and confirms his jail sentence.
He appeals to SCA.
The SCA finds him guilty and confirms his jail sentence.
Can he appeals further? – No.
If SCA had found him guilty and imposed the death penalty, could he appeal further? – Yes. Then the thief
can appeal to CC only about the death penalty not about the guilty verdict.
Cases are heard by 3 to 5 judges
Full Bench = 5 judges
Court sits in Bloemfontein
2.3) High Court
o There is a High Court for each of the nine provinces.
o Some provinces have more than one High Court. – e.g. bigger provinces
o Each High Court only has jurisdiction over its geographical area
High Courts – Main Seats of Each Province (known as provincial division):
1) Western Cape Division (WCC)*
Court is in Cape Town and hears cases that arise in the Western Cape
2) Eastern Cape Division (ECG)
, Sits in Grahamstown and hears matters arising in the Eastern Cape – i.e. it has
jurisdiction over the Eastern Cape
3) Northern Cape Division (NCK)
Sits at Kimberley. Jurisdiction over the Northern Cape
4) Gauteng Division (GP)*
Sits at Pretoria. Hears cases arising in Gauteng.
5) Free State Division (FB)
Sits at Bloemfontein and has jurisdiction over the Free State
6) KwaZulu-Natal Division (KZP)*
Sits at Pietermaritzburg and has jurisdiction over KZN
7) Limpopo Division (LP)
Sits at Polokwane and has jurisdiction over the Limpopo province
8) Mpumalanga Division (MN)
Sits at Nelspruit and has jurisdiction over Mpumalanga
9) North West Division (NWM)
Sits at Mahikeng and has jurisdiction over the North West Province.
Some provinces have more than one High Court. This means they have a main seat (provincial division) as
mentioned above and then also what we call a “local division” (are 6 local divisions/seats)
For example:
o Gauteng Local Division (GJ)*
Sits at Johannesburg
o Kwa-Zulu Natal Local Division (KZD)
Sits at Durban
o There are 3 local divisions in the Eastern Cape and one in the Limpopo Province.
Powers of High Courts
Each court only has power to hear matters that fall within their geographical area of jurisdiction.
All types of matters: civil, criminal and constitutional.
They can be trial courts/courts of first instance.
When sitting as a trial court, there will be one judge on the bench.
If it is a criminal matter, there will be one judge and two assessors.
Assessors
An assessor is not a judge – they are from a legal profession. (i.e. advocate, attorney) and they
help the judge assess the evidence.
They can also hear appeals from magistrates’ courts and from a single judge from their own
division
In an appeal, there will normally be 3 judges on the bench – 3 judges = full bench
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