THE SOUTH AFRICAN JUDICIARY
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
• Ordinary Magistrates’ Courts (also called District Courts)
Currently, Regional Magistrates’ Courts only deal with criminal cases whereas the District Magistrates’ Courts deal with criminal and civil cases. The Magistrate makes the decisions in a Magistrates’ Court; sometimes with the support of lay assessors. Magistrates’ 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 Magistrates’ 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 Magistrates’ Court can impose a maximum fine of R300 000.
Regional Courts now have civil jurisdiction to the extent that divorce matters can now be heard there.
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 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.
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 and Sexual Offences Courts.
Small Claims Courts have jurisdiction to hear any civil matter involving less than R 12 000 (unless both the person suing and the person being sued agree to limit the claim to less R12 000). But some cases cannot be taken to the Small Claims Court even if they are for R12 000 or less.
Examples of these claims are:
• Matters concerning a will
• Malicious prosecution
• Wrongful imprisonment
• Breach of promise to marry
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. The Commissioner listens to both sides and asks all the questions since lawyers cannot be used in the Small Claims Court, but citizens can obtain advice from a paralegal advisor or a lawyer to prepare for their cases.
No appeals may be filed against the judgment or order of the Small Claims Courts. The court proceedings may however be referred to the High Court for review on three grounds, namely: absence of jurisdiction by the court; interest in the cause, bias, malice or corruption on the part of the commissioner and gross irregularity with regard to the proceedings. Small Claims Court can be contacted through Magistrates’ Courts.
Community Courts can be described as “District Courts” that deal with similar cases as normal Magistrates’ Courts; the difference being that they only deal with petty crimes such as shoplifting cases, petty theft, petty gambling offences, petty traffic offences, drunkenness, drinking in public, riotous behaviour, failure to comply with a lawful instruction of a police officer, various train-related offences, common assault etc.
Community Courts should not be confused with Traditional Courts that are found mostly in rural areas and which assist in resolving less serious disputes. There are three Community Courts that have been established in the Western Cape namely: Mitchell’s Plain; Cape Town and Fezeka (Gugulethu). These courts practice restorative justice and many diversion and alternative sentencing options are applied in Community Courts.
The accused is assessed as soon as possible (usually within 48 hours of arrest) to decide on suitability for diversion from the criminal justice system. Legal Aid attorneys are available on request.
Equality Courts have been set up to help people who believe that they have suffered unfair discrimination, hate speech or harassment. These courts make it is easy for persons with such cases to bring their matters to court and that the matters are finalised quickly.
Any person can bring a matter to the Equality Court, even if they are not directly involved in what happened. This means a complaint to the court can be lodged against someone or an organisation believed to have failed to respect the rights of another person.
Equality Courts deal with complaints that are about unfair discrimination, hate speech or harassment. A case can be lodged if a person believes that they or someone else was treated badly because of hatred or bias based on any one of the following basis:
• Marital status
• Ethnic or social origin
• Colour of skin
• Sexual Orientation
• Religion, conscience & belief
• HIV status, or perceived status
• Economic or social status or
• Family responsibility and status
Equality Courts seek to achieve the expeditious and informal processing of cases, which facilitates participation by the parties to the proceedings; and they also seek to ensure access to justice to all persons in relevant judicial and other dispute resolution forums. You can take your complaint to your nearest Equality Court.
Child Justice Courts
Prior to 1 April 2010, children who committed crime were dealt with, in terms of the Criminal Procedure Act, 1977 (Act 51 of 1977) which also deals with adults who commit crime. The aim of the CJA is to set up a child justice system for children in conflict with the law. This means that children under the age of 18, who are suspected to have committed crime, will not be dealt with in terms of the normal criminal procedure which is used for adults, but the child justice process will be followed.
The CJA seeks to ensure that child justice matters are managed in a rights-based manner and to assist children suspected of committing crime to turn their lives around and become productive members of society by engaging with the child in restorative justice measures, diversions and other alternative sentencing options.
Maintenance Courts are situated in Magistrates’ Courts. Mothers or fathers who do not get support for their children from the other parent can approach Maintenance Courts to claim maintenance from that parent.
There are Maintenance Officers in charge of maintenance matters at Magistrates Courts. It is not necessary to have an attorney to claim maintenance. Maintenance Officers are always on hand to help those in need to complete the necessary forms.
In the case where one of the parents of the child refuses to pay maintenance; then the case must go to the Maintenance Court. In this case, the Maintenance Officer will provide details to the parties on when to appear in court and which court to go to.
Sexual Offences Courts
As part of responding to the problem of sexual offences, special sexual offences courts are set up across the country. They are built in such a way that children and victims get the necessary care, respect and support at the court.
For example, there is a waiting room to make sure that the woman or child, who is a victim of e.g. rape, does not come in contact with the accused person. Toys are also available to make sure a relaxed atmosphere is created for a child. In some cases television is used to make sure that evidence by the victim in given in a comfortable way.
The other programmes that is also implemented is that it is now made easier for victims to lay a charge by opening a case at a one-stop centre called a Thuthuzela Care Centre which is at a hospital.
Children’s Courts have been established for circumstances where for example, a person or parent has the responsibility to look after the daily needs of a child (child custody). That means they will provide a home for the child, feed and support them, look after their daily needs and make sure they get an education.
Courts for Chiefs and Headmen
These courts have jurisdiction to hear certain matters at the level of Magistrates’ Courts. They are designed to deal with customary issues in terms of customary law. An authorised Headman or his deputy may decide cases using indigenous law and custom (for example, disputes over ownership of cattle or lobolo), brought before him parties within his area of jurisdiction. These courts are commonly known as Chief’s Courts. A person with a claim has the right to choose whether to bring it to a Chief’s court or in a Magistrates’ Court. Any person who is not satisfied with the decision in a Chief's or Headman's court can take their matter to the ordinary courts.
Legal Aid South Africa
is an autonomous body established by the Legal Aid Act (Act 22 of 1969) and the Legal Aid Act (Act 20 of 1969). The objective of Legal Aid South Africa is to render or make available legal representation to indigent persons at State expense as contemplated in the Constitution of the Republic of South Africa (Act 108 of 1996), which affords every citizen access to justice. This means that Legal Aid is provided by Legal Aid South Africa to persons who cannot afford it in terms of a means test
(e.g. earning less than R5 000).
See more information on the legal aid system and how to access legal aid on their website: http://www.legal-aid.co.za/