The South African Judicial System

Section 166 of the Constitution of the Republic which deals with the Judicial System establishes the following courts:

  1. the Constitutional Court;
  2. the Supreme Court of Appeal;
  3. the High Courts, including any high court of appeal that may be established by an Act of Parliament to hear appeals from High Courts;
  4. the Magistrates' Courts; and
  5. any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates' Courts.

The Chief Justice, as declared by the Superior Courts Act, exercises responsibility over all Superior Courts including the Constitutional Court, Supreme Court of Appeal, the High Court and any court of status similar to the High Court.

The Constitutional Court

The Constitutional Court is South Africa's highest court on constitutional matters. Its jurisdiction - the scope of its authority to hear cases - is restricted to constitutional matters and issues connected with decisions on constitutional matters.

Section 167(4) gives the Constitutional Court exclusive jurisdiction in deciding disputes about the powers and constitutional status of branches of government. Only the Constitutional Court may:

  • decide 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;
  • decide on the constitutionality of any parliamentary or provincial Bill;
  • decide on the constitutionality of any amendment to the Constitution; and
  • decide that parliament or the president has failed to fulfil a constitutional obligation.

The Constitution requires that a matter be heard by a quorum of at least eight judges. In ordinary practice, all 11 judges hear every case. If any judge is absent for a long period or a vacancy arises, an acting judge may be appointed.

The Court does not hear evidence or question witnesses. As a court that functions largely as a court of appeal, it considers the record of the evidence heard in the original court that heard the matter.

The 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.

In terms of the Constitution, the Supreme Court of Appeal may decide any matter, except certain labour and competition matters, but is purely an appeal court, and it may decide only appeals and issues connected with appeals.

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.

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.

The High Courts

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.

There are 13 high courts:

  • the Eastern Cape High Court has four branches, 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 Thohoyandou;
  • the Northern Cape High Court in Kimberley;
  • the North West High Court in Mafikeng; and
  • the Western Cape High Court in Cape Town.

The following specialist high courts exercise national jurisdiction:

  • The Labour Court and Labour Appeal Court in Braamfontein, Gauteng, which adjudicate over labour disputes and hear labour appeals, respectively.
  • The Land Claims Court, in Randburg, Gauteng, which hears matters on the restitution of land rights that people lost after 1913 as a result of racially discriminatory land laws.
  • The Competition Appeal Court, situated in Cape Town, which deals with appeals from the Competition Tribunal.
  • The Electoral Court, situated in Bloemfontein, which sits mainly during elections to deal with associated disputes.
  • The Tax Court, situated in Pretoria, which deals with tax-related matters, including non-compliance with tax obligations.

Magistrate’s courts

The Magistrates’ Courts are the lower courts which deal with 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 Magistrates’ Courts, which only deal with criminal cases; and
  • Ordinary Magistrates’ Courts (also called District Courts), which deal with criminal and civil cases

Heads of Court Meeting

The Heads of Court, as the leadership of the Judiciary, meet three times a year to discuss matters concerning the institutional independence of the Judiciary, the effective and efficient administration of the Courts and delivery of access to Justice to all South Africans. This meeting has taken on added importance since the enactment of the Superior Courts Act and the transfer of the Judicial administrative functions to the Office of the Chief Justice.

The Heads of Court meeting is attended by the Chief Justice along with all the Judges President from the Superior Courts, including the President of the Supreme Court of Appeal, the Judges President of the various High Court divisions, the Head of the Competition Appeal Court, the Land Claims Court, as well as the Electoral Court.

The meeting discusses various issues that pertain to the running of the courts, and the administrative support from the Office of the Chief Justice (OCJ). The Judges discuss court performance, monitoring of the norms and standards and reserved judgments. They also receive reports on many operational matters, including ICT updates and programmes, Judicial Case Flow Management, Library services, training programmes by SAJEI, and Infrastructure matters.

All the decisions taken by the Heads of Court must be actioned by the OCJ as the support organisation to the Judiciary. The Heads of Court also give guidance on issues relating to the monitoring of court performance, media matters, and matters relating the recruitment. All these aspects must be implemented and managed by OCJ officials. For this reason some members of the OCJ Executive Committee, led by the Secretary General, are also present at the Heads of Court meetings. {Play}