SUBJECT 2 : PART 1

Question 1

Where is the judicial authority of SA vested?

Answer 1

S165(1) of the constitution states that judicial authority is in the courts and courts are independent and subject to the Constitution and law

Question 2

Superior Courts

What is the composition of the concourt?

Answer 2

Highest Court in SA and consists of a Chief Justice, Deputy CJ and 9 other judges

Question 3

Superior Courts

What is the jurisdiction of the constitutional court?

Answer 3

-Final jurisdiction on all matters
-Decides on all const matters & any other matter if concourt grants leave to appeal(where matter is of general public importance)
-Concourt makes final decision on whether it has jurisd over a matter (S167(3) of Const)
-Final decision on constitutionality of an act of parliament or presidential conduct

Question 4

Superior Courts

What is the composition of the SCA?

sca

Answer 4

-President and Deputy President of SCA and as many judges as determined by criteria and approved by President of SCA
-5 judges for criminal matters
-President can direct an appeal be heard before 3 judges/5+ judges

Question 5

Superior courts

What is the jurisdiction of the SCA?

sca

Answer 5

-Can decide on any matter on appeal and rule on constitutionality of legislation+presidential conduct (S170)
-Make an order on an act of parliament/provincial act/presidential conduct but such order is confirmed by ConCourt (S172)
-Power to develop common law (S173)

Question 6

Superior Courts

What type of court is the SCA?

sca

Answer 6

It is only a court of appeal and not a court of first instance= no original sentencing jurisdiction but can correct incorrect sentences with sentencing juris of court of first instance
-Inherent power to regulate own procedures (S172)

Question 7

Superior Courts

What is the constitutional jurisdiction of the HC?

High Court

Answer 7

-Has jurisdiction to decide constitutionality of legislation/ presidential conduct(S169)
-Can develop common law (S172)

Question 8

Superior Courts

what is the appeal& review jurisdiction of the High Court?

Answer 8

Appeal & review jurisdiction for all criminal proceedings of lower courts
-Main seat has parallel jurisdiction with local seat operating at the same time and case can be moved from local>main seat.

Question 9

Superior Courts

What is a circuit court?

High Court

Answer 9

Judge Pres. of HC estab. a circuit court under jurisdiction of that division to adjud. civil/crim matters
-Must sit min of 2 times a year

Question 10

Lower Courts

What is the composition of the lower courts?

Answer 10

-Courts est. under Magis Courts Act
-Magis Court has a district and regional court
-Periodical courts have same function as reg+dist courts & jurisd of dist. court. No one will be liable to appear as accused before a PC unless reside closer to PC than Magis court

Question 11

Lower Courts

What is the constitutional and appeal jurisdiction of the lower courts?

Answer 11

-No jurisdiction to determine constitutionality of legislation or presidential conduct
-Don’t have authority to decide on appeal/review except in S29 of MCA (appeal lodged on conviction/sentence on chiefs

Question 12

Lower Courts

What are other lower courts?

Answer 12

Courts taht have jurisdiction to try offences committed with the TC’s jurisdiction according to traditiona; law

Question 13

Criminal Jursidiction

What criminal jurisdiction does the high court+ distric courts+regional courts have?

Answer 13

HC-Jurisdiction over all offences
DC-Jurisdiction over all crimes exc. treason,murder,rape, compelled rape
RC-Jurisdiction over all crimes except treason

Question 14

Territorial jurisdiction

What territorial jurisdiction do HC divisions have?

Answer 14

All HC divisions have original jurisdiction for all offences committed in their areas (s19)

Superior Courts Act 20 of 2013

Question 15

Territorial jurisdiction

what is the difference between a summary trial and a preparatory exam?

Answer 15

A.ST- Accused charged in MC and court decdes whether the accused is innocent/guilty
B. PE- A hearing in which accused is not tried and magis doesn’t judge inn/guilt but only hears evidence when sent to director of public prosecutions> dop decides to prosecute and which court

Question 16

Summarry Trials

What does S90 provide for?

S90 of Magistrates Court Act

Answer 16

A district court/regional court has jurisdiction to hear trials of people charged with offences committed within district/regional division

Question 17

Summary Trials

what is the 4km rule?

S90 of Magistrates Courts Act

Answer 17

-If someone is charged with a crime within 4km of a district boundary or on a vehicle that travelled within that distance, they can be tried by the local court as if the offense occurred within that district.
-if the crime was committed on a vessel within the territorial waters of the country and those waters adjoin the district or regional division, the trial can take place there.
-If the crime began or ended within the district /regional division, the person can be tried by the local court, treating it as if the offense happened entirely within that area

Question 18

Territorial jurisdiction

What is jurisdiction for offences committed outside SA?

Answer 18

-SA courts only have jurisdiction for offences commited within SA
-Offences committed on aircraft > sec18 Aviation Act
1. And certain offences related to. Hijacking committed outside RSA on board aircraft other
than SA > it is required that:
1. Such aircraft land in RSA while offender on board or
2. the principal place of business or permanent residence of the levee of such aircraft be
in RSA or
3. The offender be present in RSA
-Offences committed on SA ships:offences committed within territorial waters of RSA

Question 19

Jurisdiction with regards to sentencing

What is the maximum sentence the HC/DC/RC can impose?

Answer 19

HC- life imprisonment
RC- 15 year imprisonment
DC- 3 year imprisonment

Question 20

Recusal of Judicial Officer

What is the rule surrounding recusal?

Answer 20

A judge must recuse themselves if there is a reasonable percieved conflict of interest or reasonable suspicion of bias based on objective facts.

Question 21

Application for Recusal of Judicial Officer

What are the requirements for test of judicial bias?

Answer 21

Application made at beginning of trial
Requirements
1. Must be a suspicion that JO might be biased
2. Suspicion must be of a reasonable person in accused’s position
3. Suspicion be on reasonable grounds
4. Suspicion be one which reasonable person would have held

Question 22

Impartiality and Fairness

what is impartiality and fairness?

Answer 22

1.Presiding judge should be fair to both prosecution and defence. The indiv has right to equality before the law and to equal protection
2.Le Grange case- Impartiality is when judge is open to persuasion by evidence and submissions and does not worry about the outcome
3.JO’s base their decisions soley on evidence heard in open court in presence of the accused

Question 23

Assessors in Lower Courts

How are assessors appointed in lower courts?

Answer 23

-Magis. may summon 1or 2 assessors to assist him in proceedings
-IN RC during trial of murder JO summon 2 assessors unless accused does not want assessors

Question 24

Assessors in High Court

How are assessors appointed in the HC?

Answer 24

Criminal cases- trials are done by single judge or judge and 1/2 assessors
Presiding judge has discretion on whether to sit with assessors

Question 25

Sentencing

What type of sentencing may the HC impose?

Answer 25

1.Imprisonment +life imprisonment
2.periodical imprisonment
3.declaration as a habitual criminal
4.Fine
5.Committal to a treatment centre
6.Correctional Supervision

Question 26

Sentencing

What type of sentencing may a regional court impose?

Answer 26

1.Imprisonment +15 years imprisonment
2.periodical imprisonment
3.declaration as a habitual criminal
4.Fine no more than R600 000
5.Committal to a treatment centre
6.Correctional Supervision

Question 27

Sentencing

What type of sentencing may a district court impose?

Answer 27

1.Imprisonment +3 years imprisonment
2.periodical imprisonment
3.declaration as a habitual criminal
4.Fine not more than R120 000
5.Committal to a treatment centre
6.Correctional Supervision

Question 28

Validility of Jurisdiction

What is the validity of superior courts jurisdiction regarding presidential conduct?

Answer 28

• Sec170 Constitution: all superior courts are competent to pronounce on the validity of any law
  (national or provincial or conduct of the president)
  – lower courts do not have this authority >
• If any law or any conduct of president is invalid on the grounds of inconsistency with the constitution or invalid on another ground > the court shall decide the matter on the assumption
  that such law or conduct is valid

Question 29

Case Law

What did the S v de beer case establish regarding jurisdiction?

Answer 29

(4 km rule (s 90(2)) not applicable
to trials in the high court)

Question 30

Case Law

What did S v Ebrahim case state regarding jurisdiction?

Answer 30

crimes committed outside SA – SA
courts will not have jurisdiction where unlawful arrest in contravention
of international law: