Chapter 2- Structure And Officers Of The Courts

Question 0

What does s8 of the Constitution state?

Answer 0

S8(1) states that all SA courts are bound by the basic rights contained in Chapter 2 of the Bill of Rights. In terms of s8(3) the courts must give effect to these rights.

Question 1

What does s165 of the Constitution state?

Answer 1

It states that the judicial authority of RSA vests in the courts.

Question 2

What effects has the Constitution had on the Law of Civil Procedure? - 4 points

Answer 2

The Constitution has had inter alia, the following effects on the law of civil procedure:

a) Locus standi;
b) Litigation involving organs of the State;
c) HCR 17(4);
d) Section 64 of the Magistrates’ Courts Act (debt collection procedure).

Question 3

How has the Constitution affected locus standi?

Answer 3

In terms of the common law any person intending to institute or defend legal proceedings must have a “direct and substantial interest” in the right which forms the basis of the litigation. However, in an action or application relating to a right entrenched within the BoR, locus standi has been considerably widened by s38 of the Constitution to include persons and groups who would not ordinarily have locus standi in terms of the common law.

Question 4

How has the Constitution affected litigation involving organs of State?

Answer 4

Before the constitutional dispensation legislation set out strict notice requirements and severely limited prescription periods within which claims could be instituted against organs of State. The enactment of the Institution of Legal Proceedings against Certain Organs of State Act has now aligned these notice requirements and prescriptive periods with the Constitution.

Question 5

How has the Constitution affected HCR 17(4)?

Answer 5

In terms of this Rule, every summons must state the names of the parties as well as the defendant’s sex and, if female, her marital status. In Nedcor Bank v Hennop and Another, the High Court held that the HCR 17(4) reference to the defendant’s sex and marital status was an infringement of s9(1) and (3) of the Equality clause of the Constitution.

Question 6

How has the Constitution affected s65 of the Magistrates’ Courts Act?

Answer 6

In Coetzee v Government of RSA; Matiso and Others v Commanding Officer, PE Prison and Others, the CC ruled that a person could no longer be arrested for failing to pay a civil debt, and redrafted s65 debt collection procedure to bring it in line with the Constitution.

Question 7

Which section of the Constitution outlines the hierarchy of the various courts of RSA?

Answer 7

Section 166

Question 8

According to s166 of the Constitution what is the hierarchy of the courts in RSA? -5 points

Answer 8

1) CC;
2) the SCA;
3) the HC’s, including any HC of Appeal which may be established by an Act of Parliament to hear appeals from HC’s;
4) the MC’s;
5) any court established or recognized in terms of an Act of Parliament, including any court that has a status similar to that of the HC or MC.

Question 9

What does the doctrine of stare decisis entail?

Answer 9

According to this doctrine lower ranking courts are bound by the decision of higher courts.

Question 10

How was the CC established?

Answer 10

It was established in terms of the interim Constitution of 1993 and the Constitutional Court Complementary Act. It’s existence is confirmed by s167 of the final Constitution read with item 16(2) of Schedule 6.

Question 11

Where does the CC have its seat?

Answer 11

Johannesburg, and it is the final court of appeal in respect of all constitutional matters.

Question 12

Who presides over the CC?

Answer 12

In terms of s167(1) of the Constitution the CC is presided over by the Chief Justice, the Deputy Chief Justice and 9 other judges.

Question 13

What is the quorum of a constitutional matter brought before the CC?

Answer 13

A matter brought before the CC must be heard by at least 8 judges.

Question 14

Where is the procedure that must be followed by the CC contained?

Answer 14

It is contained in the Rules of the CC as published in the Government Gazette.

Question 15

What does s167(3) of the Constitution provide? -3 points

Answer 15

It provides that the CC:

1) is the highest court in Constitutional matters;
2) may adjudicate only on Constitutional issues and issues that are related to decisions on constitutional matters;
3) is the final decision maker on whether a matter is a constitutional matter and whether an issue is related to a decision on a constitutional matter.

Question 16

What are the majority of matters that are adjudicated before the CC?

Answer 16

Most matters coming before the CC are referred to it on appeal from the SCA or the HC.

Question 17

On what matters does the CC have exclusive jurisdiction?

-6 points.

Answer 17

In terms of s167(4) of the Constitution, on the CC may:

a) Decide disputes between Organs of State in the national or provincial sphere;
b) Decide on the constitutionality of any parliamentary or provincial Bill, but only in terms of s79 or s12;
c) Decide on an application brought by members of the NA or NCOP for an order declaring all or part of an act unconstitutional in terms of s80 or s122;
d) Decide of the constitutionality of any amendment to the Constitution;
e) Decide whether Parliament or the President has failed to comply with a constitutional obligation;
f) certify a provincial constitution in terms of s144 of the Comstitution.

Question 18

What happens when the SCA or the HC gives an order of unconstitutionality?

Answer 18

No order of unconstitutionality given by the SCA or the HC is valid until that order has been confirmed by the CC. S167(5) of the Constitution states that the CC makes the final decision on the unconstitutionality of an Act of Parliament, a provincial Act or conduct of the President.

Question 19

What is the Supreme Court of Appeal?

Answer 19

The SCA is the highest court of appeal with regard to all issues other than constitutional issues.

Question 20

What does section 168(3) of the Constitution provide in regards to the SCA?

Answer 20

Section 168(3) provides that the SCA may hear (i) appeals, (ii) issues connected with appeals, and (iii) any matter referred to it by an Act of Parliament.

Question 21

Can the SCA hear appeals in respect of constitutional issues?

Answer 21

Yes, the Constitution provides that the SCA may hear appeals in respect of constitutional issues, and a further appeal, on the constitutional issues only, may then lie with the CC.

Question 22

Is the SCA a court of first instance?

Answer 22

No, the SCA is purely a court of appeal and not a court of first instance, and it has appeal jurisdiction over the whole of SA.

Question 23

Does the SCA have original jurisdiction?

Answer 23

No, it has no original jurisdiction, and all matters before the court must, of necessity, come to it on appeal or review from the High Court..

Question 24

Where does the SCA have it’s seat?

Answer 24

The SCA has its seat in Bloemfontein.

Question 25

When was the SCA first established?

Answer 25

It was first established by the South Africa Act of 1909, the relevant provisions were superseded by the Supreme Court Act.

Question 26

According to the Supreme Court Act, what was the SCA known as?

Answer 26

It was known as the Appelate Division (AD), but the Constitution has changed the name to the Supreme Court of Appeal.

Question 27

What does the SCA consist of?

Answer 27

The court consists of a President, a Deputy President and a number of judges of appeal.

Question 28

What is the quorum of judges for matters brought before the SCA?

Answer 28

In terms of s12 of the Supreme Court Act, the quorum of judges for both criminal and civil appeals in the SCA is generally 5 judges, and the judgement majority is the judgment of the court.

Question 29

What happens if at any time during a hearing of an appeal in the SCA one or more of the judges dies, retires or otherwise becomes incompetent to preside or is absent?

Answer 29

The trial proceeds before the remaining, and the majority judgment of the remaining judges will constitute the judgment of the court.

Question 30

What happens when the majority of judges in the SCA can’t reach agreement on a specific judgment?

Answer 30

The matter is adjourned and commenced de novo before a new court as composed and determined by the President of the Court.

Question 31

In terms of setting precedent, how does the process of the SCA affect the rest of the SA’s courts?

Answer 31

The process of the SCA is valid throughout RSA, and it’s judgments and orders have effect in the jurisdiction of every other division and can be executed in the same manner as if they were original judgments or orders of that division.

Question 32

What is the procedure that is to be followed in the SCA?

Answer 32

The procedure to be followed in the SCA is contained in the Rules of the Supreme Court of Appeal.

Question 33

What was the previous label of the High Court?

Answer 33

The previous label was the “Supreme Court”.

Question 34

When was the High Court created?

Answer 34

The HC was created by the South Africa Act of 1909. In terms of this Act, the Supreme Courts of the four colonies constituting the Union of SA retained their former jurisdiction. This court structure was retained but the Supreme Court Act, which replaced the relevant sections of the SA Act

Question 35

According to the Supreme Court Act, what were the different divisions of the Supreme Court?

Answer 35

There were 6 provincial divisions of the Supreme Court, three of which had local divisions attached to them. These provincial and local divisions, as well as the 4 courts established in the TBVC states, have become High Courts in terms of s166 of the Constitution.

Question 36

How do we refer to the different High Courts of SA?

Answer 36

Although it is more correct to refer to them as separate and distinct High Courts, they are, for convenience, referred to simply as the various”divisions” of the High Court.

Question 37

When were the High Courts renamed?

Answer 37

The High Courts were renamed by the Renaming of the High Courts Act. In terms of this Act, as from 1 March 2009 all pleadings, applications and documents dealing with High Court litigation must refer to the new names of the various divisions of the High Court.

Question 38

Is the High Court a court of appeal?

Answer 38

The HC is a court of first instance (court a quo), but it also operates as a court of appeal for the Magistrates’ Courts within its area of jurisdiction. Two judges will usually form the quorum for an appeal from a Magistrates Court.

Question 39

Do all High Courts also operate as courts of appeal in respect of decisions made by a single judge of the High Court?

Answer 39

All the High Courts, except the Local Divisions in Durban and the Eastern Cape, also operate as courts of appeal in respect of decisions made by a single judge of the HC. The Durban and EC divisions can’t constitute a full bench for the purpose of hearing an appeal.

Question 40

When a decision made by a single judge of the HC is appealed, where will the matter go for an appeal?

Answer 40

It will either go to a three-judge bench (full bench) of the same High Court or to the Supreme Court of Appeal.

Question 41

When will an appealed decision by single HC judge be directed to a full bench in the Same HC?

Answer 41

Appeals are generally directed to a full bench of the same HC when issues of fact must be decided.

Question 42

When will an appealed decision by single HC judge be directed to the SCA?

Answer 42

Appeals are generally directed to the SCA when a matter of law is in issue.

Question 43

What do the divisions of the High Court consist of?

Answer 43

A division of the HC consists of a Judge-President and as many judges as the President of SA may appoint on the advice of the Judicial Service Committee. Generally, a single judge presides if a HC sits as a court of first instance. Sometimes a hearing by a single judge can be referred for hearing by a full court consisting of three judges, eg when an important question of law is to be determined.

Question 44

What happens if at any time during a hearing in the HC if one or more of the judges of a full court dies, retires or otherwise becomes incompetent to preside or is absent?

Answer 44

The matter proceeds before the remaining judges, but only if the remaining judges constitute majority of the judges before whom the matter commenced. If the judges don’t constitute a majority or if only one judge remains, the trial must commence de novo, unless all parties to the proceedings agree unconditionally and in writing abide by the decision of the majority of the remaining judges or to accept the judgment of the single remaining judge.

Question 45

What is the procedure to be followed in the Hogh Court?

Answer 45

The procedure to be followed in the High Court is contained in the Uniform Rules of Court.

Question 46

Briefly explain the statement that all Magistrates Courts are creatures of statute?

Answer 46

 These courts may only operate within the four corners of the act/they may only do what legislation entitles them to do (vs the HC – the HC can do everything not specifically prohibited by legislation).
 These courts do not have inherent jurisdiction.
 Magistrates’ Courts operate only within the Magistrates’ Courts Act and
Magistrates’ Courts Rules.

Question 47

How many District Courts are there in SA?

Answer 47

There are almost 500 District Courts in SA, each exercising jurisdiction over a specific geographical area.

Question 48

How many Magistrates does each District Court have?

Answer 48

Each District Court has at least one Magistrate but, for practical purposes, larger centers have a number of additional magistrates. A Chief Magistrate will be appointed for any district containing 10 or more magistrates.

Question 49

What type of jurisdiction do District Courts exercise?

Answer 49

District Courts exercise both criminal and civil jurisdiction. Regional Magistrates’ Courts previously exercised only criminal jurisdiction, but with effect from 15 October 2010, following the coming into operation of the Jurisdiction of Regional Courts Amendment Act and the Magistrates’ Courts Amendment Act, regional divisions have been created to deal with civil matters as well.

Question 50

When were the former set of Magistrates Courts rules replaced with the new set of rules?

Answer 50

The former set of rules were replaced with the new set of rules which came into operation on 15 October 2010..

Question 51

Why is the number of criminal cases tried before the High Court small?

Answer 51

The Regional Court has been given extensive criminal jurisdiction. (A Regional Court may impose a sentence of up to 15 years imprisonment.)

Question 52

What does section 170 of the Constitution provide with regards to a Magistrates Court hearing on the constitutionality of a matter?

Answer 52

It provides that a MC may decide any matter determined by an Act of Parliament, but does not possess the power to enquire into or rule on the constitutionality of any legislation or any conduct of the President.

Question 53

What is the procedure that must be followed in the Magistrates Court?

Answer 53

The procedure to be followed in MC is contained in the Magistrates Courts Rules.

Question 54

What is the Small Claims Court?

Answer 54

It is a specialised type of court constituted in terms of the Small Claims Court Act.

Question 55

What is the purpose of the SCC?

Answer 55

It’s purpose is to make the judicial system more accessible and less expensive to those persons who cannot afford HC and MC fees.

Question 56

When does the SCC sit?

Answer 56

It sits after ordinary office hours to ensure that litigating parties do not miss out on work.

Question 57

How are costs reduced in the SCC?

Answer 57

By allowing the parties to conduct their own cases. Legal representation is not allowed in the SCC.

Question 58

Who is the presiding officer in the SCC?

Answer 58

It is a commissioner and not a salaried state official.

Question 59

What does it mean that the SCC is not a court of record?

Answer 59

It means that proceedings are not recorded on tape.

Question 60

Who can be a plaintiff in the SCC?

Answer 60

The plaintiff must be a natural person and can’t be a jurisdiction person or corporation. This requirement serves to prevent a jurisdiction person from using the SCC as a cost-free debt-collecting agency.

Question 61

What is the monetary jurisdiction of the SCC?

Answer 61

The monetary jurisdiction of the SCC is currently R12 000. S17(3) of the Small Claims Court Act indicates that in order to determine whether a claim falls within the monetary jurisdiction of the SCC no account must be taken of interest, costs, general or alternative legal relief.

Question 62

What causes of action does the SCC have jurisdiction over?

Answer 62

In terms of s15 of the SCC Act, the SCC may adjudicate on the following causes of action:

a) Actions for delivery or transfer of movables or immovables not exceeding R12 000;
b) Actions for ejection against the occupier of a premises or land within the jurisdiction of the court;
c) Actions based on or arising from a liquid document or mortgage bond where the amount doesn’t exceed R12 000;
d) Actions based on or arising from credit agreement as described in s1 of the NCA, where claim or value of goods doesn’t exceed R12 000;
e) Actions other than those mentioned above where the claim doesn’t exceed R12 000;
f) actions for a counterclaim in respect of any cause of action mentioned in a-e which doesn’t exceed R12000.

Question 63

What jurisdiction does the SCC have in respect of the person?

Answer 63

In terms of s14(1), a specific SCC has jurisdiction in respect of:

a) A person who resides p, carries on business or is employed within the jurisdiction area of the court;
b) A person, with regard to the proceedings, related to an action instituted by the person in the court;
c) A person, irrespective of whether he or she resides, carries on business, or is employed within the jurisdiction of the court, if the cause of action arose wholly within the jurisdiction area of the court;
d) A defendant, whether in convention or reconvention, who appears and doesn’t object to the jurisdiction of the court;
e) A person who is the owner of fixed property in the jurisdictional area of the court in an action relating to the property or a mortgage bond therein.

Question 65

What actions are totally excluded for the jurisdiction of the SCC?

Answer 65

In terms of s16, the following causes of action are totally excluded from the SCC jurisdiction:

a) Cases where dissolution of marriage or customary union are requested;
b) Cases involving the interpretation or validity of a will or testamentary writing;
c) Cases regarding the mental capacity and status of a person;
d) Cases where a specific performance without an alternative claim for payment of damages is requested, except in the case of
i) the delivery of an account in respect of which the claim does
not exceed R12 000;
ii) the delivery or transfer of movable or immovables where the
value doesn’t exceed R12 000;
e) Cases where a decree of perpetual silence is sought;
f) Cases wherein damages are claimed in respect of
i) libel;
ii) malicious prosecution;
iii) seduction;
iv) breach of promise to marry;
g) Cases wherein an interdict is requested.

Question 66

What is the procedure that is followed in the SCC?

Answer 66

N terms of s26 of the SCC Act the rules of the law of evidence don’t apply in the SCC proceedings, and a commissioner may admit all relevant facts in any manner deemed necessary.
Evidence given in the SCC may be given either orally or in writing. The procedure is inquisitorial in nature and the commissioner actively participates by posing questions to ascertain the claim and the defence.

Question 67

What does s23 of the SCC Act provide for?

Answer 67

It provides for the suspension of the proceedings where a case contains difficult questions of law or fact which can’t be decided properly and conclusively by the SCC or ought not to be decided by the SCC. The plaintiff may then institute an action de novo in another competent court.

Question 68

Can an action be instituted against the State in the SCC?

Answer 68

In terms of s14(2) of the SCC Act no action may be instituted in a SCC against the State.

Question 69

Does the SCC have jurisdiction in actions based upon the cession or transfer of rights?

Answer 69

In terms of s14(4) of the SCC Act, the SCC has no jurisdiction in an action wholly or partially based on the cession or transfer of rights.

Question 70

What are Judges and how are they appointed?

Answer 70

The judicial officers who preside in the HC, SCA and CC are judges. In terms of Chapter 8 of the Constitution, judges are appointed by the President of SA on the advice of the JSC.

Question 71

What are Magistrates and how are they appointed?

Answer 71

Judicial officer who serve in the MC are District Court Magistrates and Regional Court Magistrates. Magistrates used to part of the civil service, but the Magistrates Act and Chapter 8 of the Constitution, as well as recent legislation relating to wages and remuneration has ensured that the status of magistrates has changed to that of independent office bearers. Traditionally almost all magistrates were drawn from the ranks of prosecutors, but this is changing and a number are now being appointed from the ranks of private legal practitioners.

Question 72

What are Registrars of the High Court?

Answer 72

The registrar is the chief of the administrative court staff in a HC. Registrars deal with the issue of processes, filing of documents, the enrollment of matters, the issue of courts orders, the issue of writ of execution and taxation of bills of costs. Bills of cost are usually taxed by an assistant registrar known as a taxing master. Registrars have also been given the power to grant default judgements in certain matters.

Question 73

What are clerks of the MC’s?

Answer 73

Court administrators in the District Courts are called clerks of the court. Clerks deal with the same matters as those dealt with in the office of the registrar of the HC but process a much larger number of default judgments because the MC is extensively used for the collection of debts.

Question 74

What are clerks in Regional Divisions of the MC called?

Answer 74

In terms of section 13A of the Magistrates’ Courts Act, a registrar who fulfills the same functions as those of clerks must be appointed for each regional division of the MC

Question 75

Is it possible to appeal against a judgment of the SCC?

Answer 75

No, the SCC is not a court of record and it is therefore impossible to appeal a judgment thereof. It is possible however to take an SCC decision on review on the following grounds mentioned in s46 of the SCC Act:

a) lack of jurisdiction by the court;
b) interest in the matter, prejudice, malice or corruption by the commissioner;
c) gross irregularity with regard to the proceedings.

Question 76

What is the sheriff in court?

Answer 76

The sheriff is the officer of the court attending the service of all processes of the court such as summons and subpoenas and plays an important role in the execution of court orders.
Sheriffs are appointed for a specific geographical area and generally the appointed sheriff will be the only official who may serve a process of the court in that area.

Question 77

Who appoints sheriffs of the court?

Answer 77

Sheriffs are not employed by the Dept. of Justice; they tender for their appointment and operate as independent contractors but owe a duty to the courts.

Question 78

What are the duties of the sheriff of the court?

Answer 78

The sheriff must attend to all the service of all processes within his or her area of jurisdiction and compile a return (known as a return of service) indicating the. American in which service was affected and furnish the return to the instructing party and the court.

Question 79

Who is the Master of the High Court, and what are their functions?

Answer 79

A master is appointed in each division of the High Court. Every mater’s office performs functions relating to deceased and insolvent estates, the liquidation and judicial management of companies, and the interests of parties who are incompetent to administer their own affairs. The ,aster is often called upon to report to the court. Eg the master must report to the court for all applications for rehab.

Question 80

What are the two types of legal practitioners in SA?

Answer 80

Attorneys and advocates.

Question 81

What is an attorney?

Answer 81

An attorney is a general practitioner and attends to a wide range of of legal functions apart from representing parties in civil and criminal proceedings.

Question 82

What are examples of other duties that attorneys attend to?

Answer 82

For example attorneys draft contracts, register companies, attend to the transfer of immovable property, draw up wills and administer deceased estates.

Question 83

What are advocates?

Answer 83

Advocates are specialists in legal proceedings and the drafting of legal opinions.

Question 84

What does it mean that an advocate. It’s be briefed by an attorney?

Answer 84

This means that a member of the public may not go directly to an advocate, but must consult an attorney who will in term brief an advocate.

Question 85

What is SA’s system of legal practitioners known as?

Answer 85

It is described as a system of split profession.