Chapter 2 – The Criminal Courts of the Republic Flashcards
➢ Section 165(1) of the Constitution
▪ The judicial authority of the Republic is vested in the courts.
Section 165(2) of the Constitution
▪ The courts are independent and subject only to the Constitution, which must apply impartially and without
fear, favour or prejudice.
The Superior Courts
➢ The Constitutional Court
➢ The Supreme Court of Appeal
➢ The High Court of South Africa
➢ Any other court of a status similar to the High Court.
The Lower Courts
➢ Regional Courts
➢ District Courts
Criminal courts relation to Children
➢ There is no separate criminal justice system exclusively for
children, although there are specific provisions relating to
child offenders in the pre-trial, trial and post-trial criminal
process contained in the Child Justice Act and the Criminal
Procedure Act.
Criminal courts relation to Sexual Offences
➢ In terms of the judicial matters second amendment Act 43 of
2013, certain divisions of the High Court and certain
Magistrates’ courts may be designated by the Minister as
special sexual offences courts dealing with sexual offences.
duty of the The Chief Justice
➢ Section 165(6) of the Constitution
▪ Head of the Judiciary
▪ Establishes and monitors the norms and standards
necessary for exercising the judicial functions of all courts.
Development of the HC
➢ Since 2013, the Constitution also provides for a single High
Court of South Africa which is instead separated into various
‘divisions.’
The Constitutional Court
❖ Composition
➢ Its seat is in Johannesburg.
➢ Chief Justice, Deputy Chief Justice and 9 other Justices.
➢ Section 167(2) → Quorum is equal to at least 8 judges.
Constitutional Jurisdiction
➢ The court has final jurisdiction in respect of all matters.
Section 167(3)(a) of the Constitution
▪ The court may decide on all constitutional matters and
may decide on any factual or legal matters only if the Constitutional Court grants leave to appeal on the grounds
that the matter raises an arguable point of law of general public importance which ought to be considered by this
court.
➢ Section 167(3)(c) of the Constitution
▪ The Constitutional Court makes the final decision on whether it has jurisdiction.
➢ Section 167(5) of the Constitution
▪ It also pronounces the final decision on whether any Act is
constitutional or unconstitutional, and no order of such a
nature made by a court lower than the Constitutional Court
has any force until it is confirmed by the Constitutional
Court.
Section 167(4) of the Constitution on the Exclusive Jurisdiction of the Constitutional Court
▪ The Constitutional Court is the only court that may decide:
* (a) 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.
* (b) The constitutionality of any parliamentary or
provincial Bill.
* (c) The constitutionality of any amendment to the
Constitution.
* The question of whether the Parliament or the President
has failed to fulfil a constitutional obligation.
▪ The Constitutional Court also decides whether an
applicant may bring a constitutional matter directly to the
court.
Section 167(7) of the Constitution on exclusive jurisdiction of CC
▪ A constitutional matter includes any issues involving the
interpretation, protection or enforcement of the Constitution.
❖ The Superior Courts Act’s Influence
➢ Section 15(2) of the Superior Courts Act
▪ The Minister may by virtue of this provision invoke a
decision of the Constitutional Court on a question of law
when there are conflicting decisions on a question of law
or when the Minister has any doubt as to the correctness
of any decision given by any division in any criminal case on
a question of law.
❖ Appeal
➢ An applicant may be granted leave to appeal from another
court (usually the Supreme Court of Appeal.
Authority on appeal
➢ Section 167(3)(b)(ii) of the Constitution
▪ The Constitutional Court has appeal jurisdiction to grant
leave to appeal and to decide on an appeal of general
public importance for the law.
Composition of The Supreme Court of Appeal
➢ The court has its seat in Bloemfontein but may convene
elsewhere when expedient and in the interests of justice –
Section 5(b) of Act 10 of 2013.
➢ It consists of a President, Deputy President and as many
judges as may be determined in accordance with the
prescribed criteria and approved by the President of the Court.
Quorum for Criminal Matters (SCA)
➢ Usually 5 judges.
➢ Section 13(1) of Act 10 of 2013
▪ The President may order that 3 judges or more than 5 judges hear a matter if they are of the view that the
importance of the matter calls for it.
Constitutional Jurisdiction of SCA
➢ May decide on any matter of appeal.
➢ May enquire into and rule on the constitutionality of any
legislation or any conduct of the President (S 170) but such a
ruling must be **confirmed by the Constitutional Court **(S 172).
➢ May develop the common law with due regard to the interests
of justice (S173).
Things the SCA has the authority to decide on:
▪ Appeals
▪ Matters relevant to appeals
▪ Any matter referred to it in terms of an Act of Parliament
Rules of Jurisdiction of SCA
▪ It is not a court of first instance.
▪ The SCA does not have original sentencing jurisdiction, but
may correct incorrect sentences in accordance with the
sentencing jurisdiction of the trial court as a court of first instance.
▪ It has the inherent power to regulate its own procedures.
▪ May remove any person interrupting the proceedings or influencing or insulting any member of the court.
Rules of Appeal
▪ Section 16 of Act 10 of 2013 and Section 315 of Act 51 1977
* The SCA has the authority to hear an appeal against any order or judgment of the High Court and to decide
such an appeal.
* However, persons who have been found guilty by any division of the High Court may not automatically appeal
to the SCA.
* Instead they must firstly seek leave to appeal from the High Court.
* Failing leave to appeal from the High Court, they must secondly
▪ Section 333 of Act 51 of 1977
Minister’s Doubt About a Decision: If the Minister doubts the correctness of a High Court decision—either about a legal question or because it conflicts with other decisions—the Minister can refer the matter to the Supreme Court of Appeal (SCA). The SCA will review and decide the issue to provide guidance for all courts.
Effect of the SCA’s Decision: The SCA’s decision does not reverse or change earlier judgments by other courts. However, in special cases, the executive (e.g., the government) may show mercy to a convicted person if it becomes clear that their conviction was unjustifiable based on the SCA’s ruling.
Composition of the HC
➢ Each division consists of a Judge President, one or more
Deputy Judge Presidents and as many other judges as may be
determined in accordance with the prescribed criteria.
➢ A single judge presides over a trial matter unless a full bench
of three judges is appointed.
➢ An appeal is heard by either 2 or 3 judges.
Constitutional Jurisdiction of HC
➢ Section 169 of the Constitution
▪ The court has jurisdiction to decide the constitutionality of
any legislation or any conduct of the President.
➢ Section 172 of the Constitution
▪ The High Court may develop the common law.
What jurisdiction does the High Court have in appeals and reviews?
The High Court has appeal and review jurisdiction over decisions made by the lower courts.
When can the High Court, sitting as a ‘full court,’ hear an appeal?
When sitting as a ‘full court’ (3 judges), the High Court has appellate jurisdiction to hear an appeal in a criminal case decided by a single judge, provided that the questions of law, fact, and other considerations involved in the appeal do not require the attention of the Supreme Court of Appeal
Is leave to appeal always required?
Yes, leave to appeal is generally required unless specific circumstances relating to child offenders are present.
What does it mean for the main seat of a division to have concurrent jurisdiction with a local seat?
It means the main seat and the local seat operate simultaneously, and cases can be transferred between the two.
What are circuit courts, and who establishes them?
Circuit courts are established by the Judge President of a High Court division to adjudicate civil and criminal matters.
How often do circuit courts sit?
Circuit courts must sit at least twice a year at times and places determined by the Judge President.
Magistrates’ Courts
❖ Composition
Composition
➢ Established in terms of section 1 of the Magistrates’ Courts Act.
➢ They are divided into:
▪ District Court
▪ Regional Court
➢ There are also periodical courts which sit at regular intervals at places other than the seats of the fixed permanent district courts, performing the same function as circuit courts do for the High Court.
➢ Section 91(1)(b) of the Magistrates’ Courts Act
▪ No person shall without his or her consent, be liable to
appear as an accused before any periodical court unless
he or she resides nearer to the place where the periodical
court is held than to the seat of the magistracy of the
district.
➢ Section 170 of the Constitution on Constitutional and Appeal Jurisdiction
▪ Lower courts do not have the jurisdiction to enquire into or rule on the constitutionality of any legislation or on any
conduct of the President.
➢ Section 29A of the Magistrates’ Court Act on Constitutional and Appeal Jurisdiction
▪ Lower courts must decide on the issue of granting or
denying leave to appeal or review a matter to the High
Court.
▪ Unless, by appeal is lodged against a conviction or
sentence of chiefs, headmen and chiefs’ deputies.
❖ Other Lower Courts
➢ It is foreseen that if or when traditional courts are introduced as part of a traditional criminal justice system, in terms of the Traditional Courts’ Bill (which is currently under review), these courts will have jurisdiction to try certain offences committed within a traditional courts’ jurisdiction according to traditional
law and customs.
Overview of Jurisdiction
of Criminal
Courts
❖ The following distinctions are relevant:
➢ Jurisdiction in respect of offences, territory and punishment
➢ Jurisdiction in respect of the validity of the provisions of any
Act
What jurisdiction does the HC have iro of offences?
➢ Original jurisdiction in respect of all offences.
What jurisdiction do district courts have iro of offences?
➢ Jurisdiction to try all crimes except:
▪ Murder
▪ Treason
▪ Rape
▪ Compelled Rape
➢ Jurisdiction to try some serious offences against the State.
What jurisdiction do regional courts have iro of offences?
➢ A regional court may try all crimes except treason.
➢ It may try murder and rape.
What section of the Magistrates’ Courts Act 32 of 1944, stiplates its jurisdiction?
➢ Section 89, Act 32 of 1944
▪ (1) The court, other than the court of a regional division,
shall have jurisdiction over all offences, except treason,
murder, rape and compelled rape as contemplated in
sections 3 and 4 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007, respectively.
▪ (2) The court of a regional division shall have jurisdiction
over all offences except treason.
Ammendment to the Magistrates’ Courts Act 32 of 1944,
➢ Section 58, Act 120 of 1993
Magistrates’ courts (excluding regional divisions) can handle all offences except treason, murder, and rape.
Regional courts can handle all offences except treason.
**Hull 1948 ** on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences
Committed on South African Territory
▪ It was held that a division of the High Court has jurisdiction
to put into effect a suspended sentence imposed by
another division or by a magistrate’s court.
s4 of the Civil Aviation Offences Act on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences
Committed on South African Territory
▪ This is an example of where the legislature sometimes lays
down, in respect of specific offences, that they shall for the
purposes of jurisdiction be deemed to have been
committed in any place where the accused happens to be.
Fairfield 1920 on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences
Committed on South African Territory
It was held that if an Act creates an offence and confers
jurisdiction merely on a lower court in respect of such
offence, the jurisdiction of the High Court is not ousted in
respect of the offence (unless there is an express provision
in the Act to this effect).
s111 of CPA on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences
Committed on South African Territory
This provision gives the National Director of Public Prosecutions (NDPP) the authority to decide that a trial can take place in a court within the jurisdiction of a different director. It applies to both lower courts and High Courts, ensuring flexibility in the administration of justice across different areas.
➢ Section 22(3) of the National Prosecuting Authority Act 32 of
1998 on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences
Committed on South African Territory
This provision allows the National Director of Public Prosecutions (NDPP) or a deputy director, with written authorization from the NDPP, to direct that an offence committed fully or partly in one jurisdiction be investigated and tried in another jurisdiction. This must be done in the interest of justice and is subject to section 111 of the Criminal Procedure Act (CPA). Such a directive must be issued in writing.
Mamase 2010
- The directive must be issued before the indictment
has been served on the accused.
▪ Section 111(3) does not prohibit such removal even though
the accused has already appeared in court.
Summaey trial in District Courts and Regional Courts
In a summary trial the accused is charged in the magistrate’s
court and this court itself decides whether he or she is guilty or
not guilty.
Preparatory examination in District Courts and Regional Courts
In a preparatory examination, there is a hearing in which the
accused is not tried. The magistrate does not judge whether he or she is guilty or not guilty, but only hears the evidence which
is then sent to the director of public prosecutions who will
decide whether to institute a prosecution or not and in which
court.
Section 90 of the Magistrates’ Courts Act on summary trials
lays down that a
district court and a regional court have jurisdiction to hear
trials of persons who are charged with an offence committed
within the district or within the regional division (consisting of
a number of districts) respectively.
What is the principle in Section 90 of the Magistrates’ Courts Act also refered to?
This principle has been extended by further provisions of
section 90 and is referred to as a four kilometers rule.
➢ NB! → It was previously “2 miles”
Section 90(1) of the Magistrates’ Courts Act (NB General
Rule)
(a) If the offence was committed within 4 kilometers beyond the district or regional division boundary.
(b) If the offence occurred on a vessel or vehicle during a journey, any part of which was within 4 kilometers of the district or regional division boundary.
(c) If the offence happened on a vessel traveling on a river within the Republic (or forming part of its boundary), and the journey or part of it was within the district, regional division, or within 4 kilometers of it.
(d) If the offence occurred on a vessel in the Republic’s territorial waters adjoining the district or regional division.
(e) If the offence began or was completed within the district or regional division
- … such a person may be tried by the court of the
district or of the regional division, as the case may
be, as if he or she had been charged with an offence
committed within the district or within the regional
division respectively.
Baba JS (Summary trials)
A person can be tried in a specific area for an offence committed within four kilometers beyond its boundary, as long as it is a common law offence or a statutory offence operative in both provinces.
However, a court cannot apply statutory law from its own area if the act or omission occurred in another province where the specific statutory provision is not applicable, even if a similar law exists there.
For example, a person could not be tried in Kimberley under the Cape Act for resisting the police when the act occurred in Boshof (Free State), even though the Free State had a similar law. The court ruled that the existence of a similar law in another province does not affect jurisdiction.
Mpika (Summary trials)
Courts cannot enforce statutory laws from another province if those laws are not operative in their own jurisdiction.
This principle was correctly affirmed in this case, emphasizing that the statutory law must be applicable in the province where the court resides for it to be applied.
Khuzwayo 1981
highlights that if two offences are identical but occur in different areas, the sentencing may differ. For instance, one area might require a mandatory minimum sentence after conviction, while the other area does not impose such a requirement. This demonstrates the jurisdictional variations in sentencing laws.
Makesi 1981
- Subject to the further remarks on extraterritorial
jurisdiction referred to below, a South African court
does not have the jurisdiction to adjudicate upon an
offence committed in a foreign state and the four
kilometers rule is not applicable in such cases
➢ Section 90(2) of the Magistrates’ Courts Act
▪ Where it is uncertain in which of several jurisdictions an
offence has been committed, it may be tried in any of such
jurisdictions.
➢ Section 90(3) of the Magistrates’ Courts Act
▪ A person charged with an offence may be tried by the court
of any district or any regional division, as the case may be,
wherein any act, omission or event which is an element
of the offence took place.
➢ Section 90(4) of the Magistrates’ Courts Act
▪ A person charged with theft of property or with obtaining
property by an offence, or with an offence which involves
the receiving of any property by him or her, may also be
tried by the court of any district or regional division, as the
case may be, wherein he or she has or had part of the
property in his or her possession.
Section 90(5) of the Magistrates’ Courts Act
▪ A person charged with kidnapping, child-stealing or
abduction may also be tried by the court of any district, or
of any regional division, through or in which he or she
conveyed or concealed or detained the person kidnapped,
stolen or abducted.
➢ Section 90(6) of the Magistrates’ Courts Act
▪ Where by any special statutory provision a Magistrate’s
court has jurisdiction in respect of an offence committed
beyond the local limits of the district (or of the regional
division), such a court is not deprived of such jurisdiction
by any of the provisions of section 90 of the Magistrates’
Courts Act.
➢ Section 90(7) of the Magistrates’ Courts Act
If offences were committed in different districts but fall under the same director of public prosecutions, the director can issue a written directive for the case to be tried in a specific magistrate’s court, treating the offences as if they occurred within that court’s jurisdiction.
If the offence qualifies to be tried in a regional court, the regional court where the magistrate’s court is located will also have jurisdiction.
➢ Section 90(8) of the Magistrate’s Courts Act
In certain situations, the director of public prosecutions can issue a written order for the accused to be charged in any district or regional court within the province or area where the director holds office.
This decision is typically made to address logistical challenges, such as managing a large number of accused individuals or preventing excessive inconvenience or public disorder.
➢ Section 90(9) of the Magistrates’ Courts Act
▪ In terms of the provisions of section 110(1) of the CPA, states that if a person is charged in the wrong court regarding territorial jurisdiction and does not object within a reasonable time, the court where the charge was laid will automatically gain jurisdiction to try the case. This ensures that delays or oversights in objections do not obstruct the administration of justice.
Section 90(10) of the Magistrates’ Courts Act
highlights that magistrates’ courts have jurisdiction under specific statutory provisions. For example, Section 18 of the Aviation Act 74 of 1962 states that offences under the Act or committed on a South African aircraft are considered, for criminal jurisdiction purposes, to have been committed wherever the accused is located.
➢ Section 90(11) of the Magistrates’ Courts Act
▪ Section 111 of the CPA confers upon the NDPP an
unlimited distraction to order a trial to take place in the
area of another director of public prosecutions
Preparatory Examinations and Preliminary Enquiries
➢ Section 125 of the Magistrates’ Courts Act
▪ Regulates the jurisdiction of magistrates’ courts.
▪ A preparatory examination is conducted in a magistrate’s
court within who area of jurisdiction the offence has
allegedly been committed.
▪ The NDPP may similar move the examination to another
magistrate’s court.
❖ Preparatory Examinations and Preliminary Enquiries
➢ Section 43(3)€ of the Child Justice Act
▪ The child in conflict with the law and below 18 years of
age must appear before a lower court.
➢ Section 47 of the Child Justice Act
▪ Sets out the procedure of the preliminary enquiry.
➢ Section 52(5) of the Child Justice Act
▪ At conclusion of the preliminary enquiry the magistrate at such enquiry may order that the matter be diverted or that the matter be referred to a child justice court. \
Jurisdiction in Respect of Offences committed Outside South Africa
❖ The General Principles
➢ Makhutla case
▪ The general principle is that the courts of the Republic will exercise jurisdiction with regard to offences committed on South African territory only.
Jurisdiction in Respect of Offences committed Outside South Africa
Kuanda v President of the Republic of South Africa
▪ Para 38
* It is a general rule of international law that the laws of a
State ordinarily apply only within its own territory.da v President of the Republic of South Africa 2005 (CC)
▪ Para 38
* It is a general rule of international law that the laws of a
State ordinarily apply only within its own territory.
The Exceptions (Listed) to Jurisdiction in Respect of Offences committed Outside South
Africa
➢ High Treason
➢ Genocide, Crimes Against Humanity and War Crimes
➢ Trafficking of Persons
➢ Appropriation of Theft
➢ Offences Committed on Ships
➢ Offences Committed on Aircraft
➢ Offences on Subsequently Annexed Land
➢ Antarctica Crimes
➢ Certain Crimes Beyond Borders
