Part A: Overview of the South African Legal System
The Meaning of Law
Law is a body of rules governing human behaviour that is recognised and enforced by the state or
government.
Law does not always equal morality; it can depend on people’s standards. There can be laws which
some people believe are immoral, e.g. abortion.
Legal Terminology
The state (government) is divided into three areas/branches:
1. The legislature – makes laws (parliament).
2. The executive – enforces the laws (president, ministers, civil service e.g. the police).
3. The judiciary – applies and interprets the law (courts e.g. magistrates and judges).
,Separation of Powers
- The constitution provides that powers are separated between the three organs of the
government (i.e. judiciary, executive, legislature)
Jurisdiction
- The power/competence which a particular court has to hear and determine an issue brought to
it. To determine jurisdiction, we ask:
1. What is the general type? (monetary value; nature of the matter).
2. Which particular type? (linking the matter to the geographical area e.g. where the
defendant resides, where the cause of action arose).
- Certain matters are heard by specific courts only (e.g. the high court only can deal with matters
relating to insolvency).
- Sometimes matters are taken to the high court where the defendant resides for convenience.
Appeal
- Taking a case from an inferior court to a higher court in the hope of getting a different
judgement.
- The higher court will re-assess the facts and see if the law was applied correctly.
- The merits of the case are challenged.
Review
- If a case is taken on review it means that someone is claiming that there was an issue with the
process or procedure, e.g. the judge was biased or drunk.
- The process and procedure of the case is challenged.
Court a quo
- Court of first instance (where someone initially takes their matter to).
Court Structures
Constitutional
Court
Supreme Court of
Appeal
High Courts
Regional Magistrates Courts
District Magistrates Courts
,Constitutional Court
- This court is in Johannesburg and has jurisdiction over the whole country.
- Needs to be between 8 and 11 judges on the bench (11 judges = full bench).
- Deals with matters that relate to the protection of human/constitutional rights and how the
country must be governed (constitutional matters).
- Only decides constitutional matters and matters of public interest.
- Other courts can also hear constitutional matters (the constitutional court doesn’t have
exclusive jurisdiction over these matters).
- There are some certain matters which the constitutional court does have exclusive jurisdiction
over.
- Most cases are brought to the constitutional court on appeal, but it can be a court of first
instance (the court that the case starts in).
Supreme Court of Appeal
- This court is in Bloemfontein and has jurisdiction over the whole country.
- Full bench = 5 judges.
- Prior to 1994, the supreme court of appeal was known as the appellate division.
- Can hear all kinds of matters and cases (criminal, civil, constitutional).
- The final court of appeal in all matters except constitutional matters and matters of public
interest (it can hear these matters, but it is not the final appeal court for them).
High Courts
- One high court for each of the nine provinces (some provinces have more than one).
- Each court only has the power to hear matters that fall within their geographical area of
jurisdiction.
- Deals with claims of R200 000 and above.
- These courts here all types of matters (criminal, civil, constitutional).
- They can be trial courts or courts of first instance and can also hear appeals.
- Western Cape Division (WCC) – Cape Town
- Eastern Cape Division (ECG) – Grahamstown
- Gauteng Division (GP) – Pretoria
- KwaZulu-Natal Division (KZP) – Pietermaritzburg
Magistrates’ Courts
- Each magisterial district has a district magistrates’ court and some also have a regional
magistrates’ court.
- Each court has jurisdiction over its geographical area.
- Magistrates sit in magistrates’ courts not judges.
- Regional magistrates’ courts: cannot hear treason cases; can only hear cases where the value of
the claim is between R200 000 and R400 000; have no constitutional or appeal jurisdiction.
- District magistrates’ courts: cannot hear reason, murder or rape cases; hear cases with a claim
of less than R200 000; no constitutional or appeal jurisdiction.
, Specialist Courts and Other Courts
- Examples of specialist courts: labour courts, tax courts, commercial courts, competition tribunal
- Small claims court: civil claims that do not exceed R20 000 (1 April 2019); no legal
representation is allowed and no fees, there is a commissioner whose decision is binding and
has the same effect as a court order.
- National consumer tribunal sits in Centurion (GP) and has jurisdiction over the whole country.
- Consumer courts: are not normal courts (not magistrates’ courts or high courts).
- Rental housing tribunal: settles disputes between tenants and landlords.
- An ombudsman is a person appointed to investigate complaints against a company or
organization, especially a public authority (e.g. insurance ombud; banking ombud).
Traditional Courts
- A bill put before parliament in 2017 (draft legislation, not law yet).
- Customary law and traditional leadership are systems that are entrenched in South Africa.
- This legislation aims to provide the structural framework in which these systems operate.
Sources of South African Law
1. Legislation
- Legislation is the statues and acts of parliament.
- In the case of a conflict, legislation takes precedence over all other types of law derived from all
other sources, except the Constitution.
- Constituion: Constitution of Republic of South Africa Act 108 of 1996.
- Original legislation
o Acts of parliament (statues): laws made by parliament e.g. Matrimonial Property Act 88
of 1984.
o Law passed by provincial legislatures.
o Law passed by municipal councils (by-laws or ordinances).
- Delegated legislation
o Legislation passed by government departments (regulations).
o Government departments do not get power to make law directly from Constitution, it is
delegated to them by another body.
o Courts only have to apply the laws of delegated legislation if they do not conflict with
the constitution AND they fall within the scope of the powers delegated to them. If they
do not fall within that scope, regulations will be struck down as ultra vires (beyond
power).
2. Roman-Dutch Law (Common Law)
- Can be abolished through disuse or if it conflicts with legislation or the constitution.
- It can be developed with new principles (e.g. constitutional values such as Ubuntu – humanity,
humility, compassion).
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