Topic 1

OVERVIEW OF SOUTH AFRICAN LAW

Classification of the branches of law

A transformative approach to South African law would recognise that there is one
system of law and that is law subject to the Constitution.

Most legal systems (if not all) have 2 major arms of the law: National law and
Internation law. International law is foreign law and is only binding if a state is
part of an international treaty/agreement; where National law is domestic law
and is binding on all members of a society.

1. International Law
International law is also known as the law of nations, or public international law.
It consists of the rules that primarily govern the relationships between
independent states, for instance between South Africa and Zimbabwe or
between South Africa and the USA.
Rules are created by custom and international treaties/conventions.
Although there is no international world government that can lay down rules for
all states and enforce them, such rules do exist. These rules may be created by
international custom or by international treaties (conventions), by means of
which the states which sign the treaties regulate certain relations between them.
Such treaties can exist between two states (bilateral treaties) or between several
states (multilateral treaties).
 Bilateral or Multilateral Applies to the state as far as it is incorporated into
the national legal system

International law applies in a state to the extent that it is incorporated into the
national legal system of that state. International law applies in South Africa in so
far as it is not in conflict with the South African Constitution or legislation. The
Constitution in section 39(1) stipulates that a court, when interpreting the Bill of
Rights, must have regard to international law.

2. National Law
National law is the law of a specific state, in our case the South African law. This
means the whole body of legal rules that is applied and enforced in South Africa.
Under National law, we have 2 sub-arms: Substantive Law and Procedural law
 Law of a State its Domestic Law- "positive" objective law - body of legal
rules applied and enforced in borders of country (geographical area)
 National law of another country is foreign law
 Substantive Law and Procedural Law:
 Substantive Law: (material law) determines content and meaning of
the different legal rules. This is where you will find the actual
content and meaning of the law
 Procedural Law: (adjective law) regulates the enforcement of the
substantive law, practical process when a legal rule has been
violated Interdependent system: content and meaning of rules
(substantive) and what happens when the rules are violated
(procedural)

Substantive law a.k.a Material law Procedural a.k.a Adjective law

The part of the law which determines The part of the law which regulates
the content and meaning of the the enforcement of substantive law.
different legal rules (legal principles).
It prohibits us, for example, from In other words, it determines the way
committing criminal offences and it a case must be practically handled
determines which human acts when a legal rule has allegedly been
constitute criminal offences, such as violated.
murder. Procedural law, for example, provides
the process according to which
It also determines the content and someone is prosecuted for murder.
application of the different rights
which an individual may have.
For instance, substantive law will
determine how an individual can
obtain ownership of a motor vehicle.

Divisions of substantive law

 Public law
 Private law Divisions of public law
 Commercial law  constitutional law
 supplementary disciplines  criminal law
 administrative law

Substantive and procedural law are interdependent. The law requires substance
to determine the content and meaning of legal rules, as well as have processes
that prescribe what should happen when such rules are violated and such.

Substantive law
 This is where you will find the actual content and meaning of the law.
 The written and unwritten law of a country that defines the relationships
between people and the state and people
 Traditional private and public law division
 Public Law: determines state authority; regulates state organisation, the
relation between organs of state and the relationship between the state
and its subjects (vertical relationship)
 Private Law: regulates the relationships between persons (legal subjects) -
rights and duties persons have towards one another (horizontal
relationship)

Procedural law
 Regulates the enforcement of the substantive law
 Process driven
 Governs the relationship between the state and its subjects or between
organs of state
 Rules as to how the State interacts with its people
 Generally an unequal relationship
 Rooted in the authority of the State
 Vertical relationship
Neither sub-arm can exist independently of one another.

3. Divisions of Procedural Law

3.1.1. Criminal Procedure
Prescribes how people who have allegedly committed criminal offences
should be prosecuted.
The law of criminal procedure lays down the rules for the investigation
of the alleged offence as well as the process in court.

3.1.2. Civil Procedure

Determines the procedure to be followed when an individual wishes to
enforce her rights against another.

3.1.3. Evidence
Determines how the facts in either a criminal or a civil case must be
proved.
Thus, it regulates the manner in which witnesses should lay their
evidence before the court, and it determines what kinds of evidence
are inadmissible

4. Divisions of Substantive law

Substantive law is traditionally divided into Public law and Private law.

Public Private

Determines the extent of state Regulates the relationships between

authority. persons.
It determines the different rights and
It regulates the organisation of the duties that persons may have towards
state, the relation between the one another.
different organs of state and the
relation between the state and its In the traditional classification of law,
subjects. the state may also be a party in the
area of private law when, for example,
In this area of law, the state acts with it enters into a contract with an
state authority. Consequently, the individual or causes an individual
public-law relationship between the harm.
state and its subjects is an unequal The theory goes that in this instance
one. the state does not act with state
authority; it is in the same position as
It is a vertical relationship. any other person.

The private-law relationship is

therefore an equal one. It can be
portrayed as a horizontal relationship
4.1. Divisions of Public Law
4.1.1. Constitutional Law
The Constitution forms the basis of constitutional law.
Constitutional law determines the nature of the state, its constituent
organs or bodies and relationships between the different bodies of the
state.
Constitutional law divides state authority into three branches:
 the legislature — which promulgates legislation (Parliament);
 the judiciary — which interprets and applies legal rules (the
courts); and
 the executive — which, in general, handles governmental affairs,
administers the state and executes court orders (the President
together with Cabinet)

4.1.2. Administrative Law

Controls the administration of the state in general. It determines the
way in which the state is to exercise its executive powers through
different bodies.
The rules of administrative law try to prevent these bodies from
exercising their powers in such a way that it is prejudicial to individuals.
Section 33 of the Constitution stipulates that everyone has the right to
just administrative action that must be lawful, reasonable and fair.
The Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) is a
statute passed by Parliament to give effect to the section 33 right.
According to the PAJA, administrative decisions may be reviewed (in
other words invalidated) by a court for several reasons including
unlawfulness, procedural unfairness, and unreasonableness.

4.1.3. Criminal Law

Determines which acts amount to criminal offences, and it also dictates
that criminal offences must be punished.
The state must prosecute and punish its subjects who have committed
criminal offences. The manner in which prosecution takes place and
punishment is imposed is determined by procedural law, more
specifically the law of criminal procedure

4.2. Divisions of Private Law

4.2.1. Law of Persons
Persons are the subjects of private law. The law of persons, in the first
instance, determines what a person is. The law does not regard only
human beings as persons, but also an entity such as a company.
The law of persons also determines the juridical status of persons, in
other words the nature of a person’s position in law

4.2.2. Family Law

Family law regulates family relationships.

4.2.3. Law of patrimony

 The part of private law which regulates the relationships between
persons with respect to their means.
‘Means’ indicates the sum total of a person’s assets and liabilities, in
other words the person’s whole estate.
The law of patrimony consists of the following:
 Property Law – deals with the relationships between persons
with respect to things. It determines which rights persons can
have with respect to movable and immovable property, and it
also regulates the origin, termination and protection of such
rights. The right to property is not simply a private law affair. The
Constitution also protects property in section 25
 Law of Succession - determines what happens to a person’s
estate after her death.
 Law of Obligations - regulates that type of relationship between
persons where one person (the creditor) has a right against
another for performance, and the latter person (the debtor) has
a corresponding duty to perform. Such a relationship is called an
obligation. It is mainly contracts and delicts that create such
obligations. A contract is an agreement between two persons in
terms of which a right and a corresponding duty to a
performance come into existence. A delict is a wrongful and
culpable act which causes damage to another.
 Law of Intellectual Property - governs the relationships between
persons with respect to intellectual property (immaterial or
industrial property). One could consider intellectual property as a
subject that falls within the domain of property law broadly
understood. Intellectual property rights are protected through
section 25 of the Constitution.

4.3. Commercial/mercantile Law

Embraces numerous branches of law important for commerce or trade
and industry. It represents a mixture of public and private law.
The following also form part of commercial law: company law, law of
insolvency, labour law and banking law.

4.4. Supplementary Disciplines

Certain disciplines that serve as a backdrop or that are supplementary
to the study and application of law.
4.4.1. Private international law (conflict of laws)
4.4.2. Legal philosophy (jurisprudence)
4.4.3. Legal interpretation
4.4.4. Comparative law (legal comparison)
4.4.5. Legal history
The range of possible sources of law
By ‘sources of law’ we mean the ‘places’ where law originates and where it can
be found.
Two types of sources:
 1) Primary – which are binding and authoritative
 2) Secondary – which are not binding but are persuasive

As far as sources of South African law are concerned, it is important to realise

from the outset that we have an uncodified legal system. This means that there
is not only one primary source (a ‘Code’) where the law originates and can be
found; South African law has more than one source:
 the Constitution;
 legislation (statutes);
 precedent (court decisions);
 common law; • custom;
 customary law;
 works of modern authors;
 foreign law; and
 international law.

Not all the sources of our law have the same authority. Some sources have
binding authority (which we will call primary sources because this is where the
law originates), whereas others have merely persuasive authority (called
secondary sources in that they provide us with help to understand the primary
sources).

Primary sources Secondary sources

 the Constitution;  writings of modern authors;

 legislation (statutes);  foreign law; and
 precedent (court decisions);  international law.
 common law; • custom;
 customary law;
Topic 2
COURTS AND CASES

The various South African courts and their renaming

Section 165 of the Constitution of the Republic of South Africa, 1996 stipulates
that the judicial authority in South Africa vests in the courts. The courts are
‘independent and subject only to the Constitution and the law, which they must
apply impartially and without fear, favour or prejudice’. And their decisions and
orders are binding on ‘all persons to whom and organs of state to which it
applies’.
 Not to create rules of law - unless the issue they are confronted with is not
provided for by legislation, common law or custom or customary law, then
the courts need to decide, in effect creating new rules of law.
 Section 34 of the Constitution:“… everyone has the right to have any
dispute that can be resolved by the application of law decided in a fair
public hearing in a court, or where appropriate, another independent and
impartial forum.”

Under section 166, the courts are

a) the Constitutional Court;
b) the Supreme Court of Appeal;
c) the High Court of South Africa, and any high court of appeal that may be
established by an Act of Parliament to hear appeals from any court of a
status similar to the High Court of South Africa;
d) the Magistrates’ Courts; and
e) any other court established or recognised in terms of an Act of Parliament,
including any court of a status similar to either the High Court of South
Africa or the Magistrates’ Courts.’

Section 166 identifies the courts as:

 the Constitutional Court;
 the Supreme Court of Appeal;
 the High Courts;
 the Magistrates' Courts; and
 Other superior courts; and Other inferior courts (any other court
established or recognised by an Act of parliament.)

There is a hierarchy of courts. That hierarchy is reflected in section 166 — the

courts are listed in order of authority — the Constitutional Court is the highest
court of the country, followed by the Supreme Court of Appeal, the High Court
and Magistrates’ Courts.
 Courts are divided into :
• Superior Courts: the Constitutional Court; the Supreme Court of
Appeal; the High Court
• Lower Courts: the Magistrates' Courts; and any other court
established or recognised by an Act of parliament.

But how is it determined in which court a specific case is heard? Which court
does one approach in a divorce case? In which court will someone be prosecuted
for theft of a motor vehicle? To which court does one appeal? Which courts can
declare legislation unconstitutional? The answers to these questions depend on
courts’ jurisdiction.
 Courts can either deal with a specific or specialized nature eg
appeal matters (SCA);
 Some courts deal with different types of issues such as the HC & the
Magistrates’ courts and they are not limited to certain types of
matters;
 Some courts are limited in their jurisdiction eg with regard to the
value of the claim and the nature of the claim (in civil matters) or
the type of the offence (in criminal matters).
What to consider
 The appropriate forum (which court has jurisdiction to deal the matter);
 Legal standing (whether the client has capacity to institute legal
proceedings);
 The cause of action (whether the client has a valid claim in law and if so,
what the legal basis is)
 Which legal procedure to institute - civil or criminal?
 How quickly should the legal action be instituted?
 Whether notice in the form of a letter of demand should be given to the
opponent before legal action is instituted?
 The origin of the court - where the court comes from
 The jurisdiction of the court - the power/capacity of the court / the
range of matters dealt with
 The presiding officer(s) - the judicial officer who decides matters

1. General principles of jurisdiction

Jurisdiction means the competence of a particular court to hear a specific case.

The types of factors that are relevant in determining jurisdiction are:

1.1. The type of case
1.2. The geographical area
1.3. Whether or not the case is appearing before the court for the first time

1.1. The type of case

we can distinguish between a criminal case, a civil case, and a
constitutional matter. It is a good idea to start the question of
determination of jurisdiction by identifying the type of case at hand.
 In a criminal case, a crime has been committed. The main aim
of a criminal case is to prosecute an accused for an alleged
crime that has been committed. The appropriate sanction for
breach of a rule of criminal law is punishment by the state. As
such, the court’s jurisdiction is determined by the kind of offence
and the possible sentence.
 Civil cases — those legal disputes where a crime has not been
committed — usually arise from disputes in private law and non-
criminal conduct. The decisive factors in determining jurisdiction
in these cases are the amount claimed and the nature of the
relief sought. Jurisdiction with respect to the latter depends on
whether it concerns matters of status such as an application for
a presumption of death. It further depends on whether only
specific performance is claimed, or whether damages are
claimed in the alternative. With a claim for specific performance,
only the performance that one party owes another is claimed.
Some matters, such as administrative law reviews of decisions
made by government officials, may only be heard by the High
Court or courts higher than it in the hierarchy of courts.
 Constitutional matters concern any issue involving the
interpretation, application or enforcement of the Constitution.
These may involve alleged infringements of human rights, the
constitutionality of conduct of an organ of state, or the
constitutionality of legislation and other laws. This classification
is important because, for example, the magistrates’ courts
cannot declare invalid conduct and laws that violate the
Constitution. In the past, the Constitutional Court was the
highest court for constitutional matters only — but this position
has changed and now the Constitutional Court is the highest
court in all matters.

1.2. The geographical area

Each court has jurisdiction within a specific geographical area in the
country. There must be some connecting factor between the persons
before the court and the court’s geographical area of jurisdiction.
 For example, in criminal cases, the area where the crime is committed
is usually where the accused is tried. In civil cases, the place where the
cause of action arose or the defendant’s domicile generally provides
the clue as to which courts could have jurisdiction over the dispute
 The Magistrate’s Court: Each province is divided into regional
divisions which again are subdivided into magisterial districts. A
Regional Court has jurisdiction within a particular regional
division and a District Court within a particular magisterial
district.
 The High Court: Each of the nine provinces has its own seat of
the High Court. Some provinces have a provincial High Court and
a local division of the High Court. In Gauteng, for example, there
is the ‘Gauteng Division, Pretoria’ which is located in Pretoria,
and the ‘Gauteng Local Division, Johannesburg’. The
Johannesburg local division’s area of jurisdiction is restricted to
Johannesburg. However, the Pretoria division’s area of
jurisdiction covers all of Gauteng (including Johannesburg). So, in
Johannesburg the two courts have ‘concurrent jurisdiction’.
 The Supreme Court of Appeal has jurisdiction within the
whole geographical area of South Africa. It has its seat in
Bloemfontein, Free State.
 The Constitutional Court has jurisdiction within the whole
geographical area of South Africa. It has its seat in Braamfontein
in Johannesburg, Gauteng

1.3. Whether or not the case is appearing before the court for the first time
(courts of first instance, appeals and reviews)
Courts of first instance: ‘court a quo’.
Each court has its own rules about whether it can hear certain matters
as a court of first instance.

Appeal Review

An appeal is lodged when the Review takes place in the case of

court has allegedly erred in its a possible irregularity in the
decision. On appeal, the court proceedings. For example, if the
does not listen to oral evidence judge was biased or did not
about the facts of the case. The afford one party a fair
court only studies the typed opportunity to present their case,
record of the court of first then a review would be the
instance, in which all the appropriate remedy. Certain
evidence is documented, and criminal cases heard by
listens to argument by the legal Magistrate’s Court, in which
representatives. The appeal may heavy sentences were imposed,
be upheld, which means that the are automatically reviewed by
decision of the court of first the High Court. In other cases, an
instance is set aside. The appeal application must be brought to
can also be dismissed, in which the High Court for review. The
case the decision of the court of High Court can also review
first instance remains in force. decisions of quasi-judicial
 Usually, appeals are made to tribunals.
courts higher in the hierarchy
than the court of first instance.

2. Courts
Under section 166, the courts are:
a) the Constitutional Court;
b) the Supreme Court of Appeal;
c) the High Court of South Africa, and any high court of appeal that may be
established by an Act of Parliament to hear appeals from any court of a
status similar to the High Court of South Africa;
d) the Magistrates’ Courts; and
e) any other court established or recognised in terms of an Act of Parliament,
including any court of a status similar to either the High Court of South
Africa or the Magistrates’ Courts.’

2.1. Magistrate’s Court

The Magistrates’ Courts Act 32 of 1944 creates the powers of the
Magistrate’s Court. ‘Magistrates’ are the presiding officers in the
Magistrate’s Court. The Regional Court has jurisdiction within a
particular regional division and the District Court within a particular
magisterial district. They both only function as courts of first instance.
Additionally, they are creatures of statute and regulated by section 166
of the constitution.
The presiding officer is referred to as ‘Your Worship’.

Regional District

Criminal cases Criminal cases

A Regional Court can try any The criminal jurisdiction of a
criminal offence (even those that District Court is restricted. It
a District Court cannot hear such cannot try offences such as
as murder and rape) but not murder, rape, compelled rape
treason. and treason.
It can impose imprisonment of up It tries less serious offences, such
to fifteen years, or a fine not as theft, drunken driving and
exceeding R600 000 for any assault. It may not impose a
offence. sentence of imprisonment of
As master of proceedings the more than three years or a fine of
Director of Public Prosecutions more than R120000 in respect of
decides in which of the two any offence.
courts an accused is to be
prosecuted. Civil cases
If the case is so serious that the The civil jurisdiction of a District
possible sentence might exceed Court is also restricted, in the
the jurisdiction of the Regional sense that it has no jurisdiction in
Court, the High Court is used as matters which fall within the
court of first instance. exclusive jurisdiction of the High
 Court.
Civil cases It can only hear cases where the
It can hear matters where the amount of the claim is R200 000
amount for the claim is more or less.
than R200 000 but not exceeding
R400 000. Constitutional matters
In divorce cases, the Regional A District Court has jurisdiction
Court has the same jurisdiction with respect to constitutional
as the High Court. However, the matters only if an Act of
Regional Court cannot hear Parliament provides it with such
matters that fall within the jurisdiction.
exclusive jurisdiction of the High It can, however, never have the
Court. power to decide on the
constitutionality of any legislation
Constitutional matters or any conduct of the President.
The same principles apply to
Regional Courts as explained
above for the District Courts.
Only if an Act of Parliament
provides it with such jurisdiction.
It can, however, never have the
power to decide on the
constitutionality of any legislation
or any conduct of the President.

2.2. High Court

The High Court is a Superior Court which operates in terms of section
169 of the constitution..
Section 169 of the Constitution, read with the Superior Courts Act,
provides that a Judge President heads a division of the High Court. The
other presiding officers are the Deputy Judge President and other
judges.
Each High Court has jurisdiction within a particular provincial area.
The High Court has appeal jurisdiction, and it can function as a court of
first instance.
Jurisdiction as court of first instance: When the High Court sits as court
of first instance, usually only one judge presides. (The Judge President
has the discretion to direct that a case be heard by a maximum of
three judges.)

The High Courts have jurisdiction as courts of first instance in the

following cases:

2.2.1. High courts and Criminal cases

A charge of treason must always be heard by the High Court.
Furthermore, it can try any criminal offence, but in practice it will try
only serious cases.
 These are offences where the possible sentence is imprisonment of
more than fifteen years or a fine of more than R600000. Only the High
Court can impose these sentences.

2.2.2. High Courts and Civil cases

If the amount of the claim is more than R400000, the claim must be
instituted in the High Court. Only the High Court can hear cases
concerning matters of status (for example, issues of mental capacity,
and an application for a presumption of death) and matters concerning
wills.
The High Court used to have exclusive jurisdiction in divorce cases, but
now the Regional Courts and High Court have concurrent jurisdiction in
this regard.

2.2.3. High Courts and Constitutional matters

The High Court can decide any constitutional matter except a matter
which falls within the exclusive jurisdiction of the Constitutional Court.
It also cannot decide matters assigned by an Act of Parliament to
another court of a status similar to the High Court.
Similar to the Supreme Court of Appeal, the High Court can declare an
Act of Parliament, a provincial Act or conduct of the President
unconstitutional.
But such an order will come into force only after it has been referred to
and confirmed by the Constitutional Court. Referral to the
Constitutional Court in these matters is compulsory.

2.2.4. High Courts and Appeal and review jurisdiction

The High Court can review and hear appeals of criminal and civil cases
that were first heard in the Magistrates’ Courts.
In such cases a further appeal can be made to the Supreme Court of
Appeal. Sometimes one can appeal within a High Court against the
decision of a single judge to a full bench (generally two judges or, if
those two judges cannot agree on an outcome, three judges) of the
High Court.

2.3. Supreme Court of Appeal

The Supreme Court of Appeal is a Superior Court in terms of the
Supreme Court Act and it operates under section 168 of the
constituion.
According to section 168 of the Constitution and the Superior Courts
Act, the head of the Supreme Court of Appeal is referred to as the
President of that court. The other presiding officials are the Deputy
President and judges of appeal.
The Act further stipulates that generally five judges of appeal will hear
a matter in this court, unless the President of the court is of the view
that it should be heard by three judges, or more than five judges.
The Supreme Court of Appeal has jurisdiction within the whole
geographical area of South Africa. Section 168 of the Constitution
makes it clear that the Supreme Court of Appeal functions only as a
 court of appeal and never as a court of first instance. It hears appeals
from the High Court, and it is the second highest court of appeal

 Criminal and civil cases: The Supreme Court of Appeal can

decide all criminal and civil cases on appeal. It is the second
highest court of appeal in such matters and it can impose any
sentence and make any order. Its decisions in this regard bind all
the courts below it.
 Constitutional matters: The Supreme Court of Appeal can
decide appeals on constitutional matters except matters that
only the Constitutional Court can decide. It can declare an Act of
Parliament, a provincial Act or conduct of the President of South
Africa unconstitutional. However, such an order of constitutional
invalidity will only have force after it has been referred to and
confirmed by the Constitutional Court

2.4. Constitutional Court

The Constitutional Court is a Superior Court in terms of the Superior
Courts Act. According to section 167 of the Constitution, read with the
Superior Courts Act, the head of the Constitutional Court is the Chief
Justice. The Chief Justice is also the head of the South African judiciary
as a whole.
Other members of the court are the Deputy Chief Justice and nine other
judges. In any case, at least eight judges must hear the matter.
Section 167(3)(b) of the Constitution states that the Constitutional
Court may decide ‘
(i) constitutional matters; and
(ii) any other matter, 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
that Court’.

Thus, even though in the past the Constitutional Court only had
constitutional jurisdiction, it is theoretically the highest court of appeal
in South Africa in all matters.
As such, decisions of the Constitutional Court are final and binding on
all other courts in South Africa. A decision of the Constitutional Court
cannot be appealed to any of the courts below it.
Furthermore, section 167(4) of the Constitution stipulates that the
Constitutional Court has exclusive jurisdiction in the following matters:
 disputes between organs of state in the national or provincial
sphere;
 the constitutionality of parliamentary or provincial bills after the
President or the premier of a province, respectively, has referred
them to the Constitutional Court, which can happen when the
President or a premier refuses to sign a Bill;
 the constitutionality of a parliamentary or provincial Act after
members of the national assembly or a provincial legislature,
 respectively, have applied to the Constitutional Court for an
order declaring such an Act unconstitutional;
 the constitutionality of any amendment to the Constitution;
 the question whether Parliament or the President has failed to
fulfil a constitutional duty; and
 the certification of a provincial constitution

This means that no other court may hear disputes pertaining to the six
points listed above.
The Constitutional Court will thus be the court of f irst instance in these
cases. Obviously a decision from the Constitutional Court cannot be
overturned by any of the courts below it.
The Constitutional Court has the final say over the unconstitutionality
of an Act of Parliament, a Provincial Act, and the conduct of the
President. A declaration of unconstitutionality and invalidity only takes
effect once the Constitutional Court has confirmed it.
Section 167(6) of the Constitution makes it possible for a litigant to
approach the Constitutional Court directly without first approaching any
other court (called ‘direct access’).
The Constitutional Court Rules explain that a person who wants to
obtain direct access to the Constitutional Court must make out a case
for why the interests of justice require it.
This application is made by means of notice of motion and supporting
affidavits

2.5. Special courts

Special Courts have been instituted for the purposes of specialised
litigation. Special courts can decide constitutional matters only if an Act
of Parliament allows it.

2.5.1. Chiefs’ and Headmen’s Courts:

2.5.2. Small Claims Court:
2.5.3. Children’s Court:
2.5.4. Maintenance Court:
2.5.5. Labour Court and Labour Appeal Court:
2.5.6. Land Claims Court:
2.5.7. Equality Court:

How to cite cases

A citation (case reference) individualises each reported case, making it easier to
find. It also eliminates confusion when two cases have the same name.
An example of a citation is:
Casey NO v The Master and Others 1992 (4) SA 505 (N)
It consists of five components:
1. Case name: Casey NO v The Master and Others
2. Year and volume case was reported: 1992 (4)
3. Series of law reports: SA
4. Page where case report starts: 505
5. Court in which case was decided: (N)

1. Case name
A reference will always start with a case ‘name’. Two parties are usually
placed against one another.
In a civil case the plaintiff’s (or applicant’s) name is given first. It is
followed by that of the defendant (or respondent). The ‘v’ represents
‘versus’ (against). In criminal cases the first party will always be the state
(‘S’). The other party is the accused.
There may also be more than one plaintiff, respondent or accused. In the
case of two parties ‘and Another’ (‘en ’n ander’) is added to the f irst
name. If there are more than two, it is indicated by the phrase ‘and
Others’ (‘en andere’).
In an appeal the appellant’s name will appear first.
Only surnames (and not first names) are cited. In exceptional cases
reference is made to the first letter of a party’s surname in order to
protect his or her identity. This applies particularly in cases where children
are involved, and will always be the case when the trial took place in
camera.

Other references found in case names are:

 NO — nomine officio or ‘in official capacity’ (NNO is the plural).
Casey, in the case cited above, does not appear in his personal
capacity, but as executor of the estate
 Amicus curiae — Latin for ‘friend of the court’. An amicus curiae
(plural: amici curiae) is a person (or organisation) not a party to the
dispute, but who intervenes in a case to assist a court by providing
expertise or information.
 In re — ‘in the case (matter) of’. This indicates that the case does
not involve a dispute between two parties, but rather the
interpretation or legal position on a certain point. This is used
especially in the interpretation of statutes and wills.
 Ex parte — ‘on the application’. This indicates that only one party
brings an application to the court. If the applicant is successful, a
provisional order (order nisi) is issued by the court.

2. Year and volume in which case was reported: 1992 (4)0

 The South African Law Reports have been published monthly since 1947.
The monthly issues are collected in six volumes per year (as from 2002;
previously, there were only four volumes). Published court reports of the
first two months of 2009 will for example be collected in volume 2009 (1).
Volume 2009 (6) contains reported court reports of November and
December 2009.
The reference does not indicate when the case was decided, but when it
was published in the law reports. Even before South Africa became a Union
(in 1910) courts gave judgments and cases were reported.
Four phases in the course of reporting can be distinguished:
a) Pre-1910 - No single system existed. Individual reporters’ surnames
were linked to a series. Each colony/territory had their own series of
reporters.
b) 1910-1946 - In 1910 the Union was formed. Reporting was now
standardised. Each division of the Supreme Court still issued its own
series. These series appeared annually.
c) Since 1947 - The consolidated South African Law Reports started
appearing.
d) 1990 - Specialist law reports began to appear.
The following are examples:
• South African Criminal Law Reports (SACR) — only criminal cases
reported; published from 1990
• Industrial Law Journal (incorporating Industrial Law Reports) —
cases on labour law, published since 1980
• Butterworths Labour Law Reports (BLLR) — cases on labour law;
published since 1994
• Butterworths Constitutional Law Reports (BCLR) — constitutional
cases reported; published from 1994
• Burrell’s Intellectual Property Reports (BIP) (since 1997; previously
Burrell’s Patent Law Reports)
• Butterworths Arbitration Law Reports (BALR) — published since
1998

3. Series of law reports: SA ‘

SA’ indicates in which series of law reports the reported case was
included. This is the ‘South African Law Reports’, the most general and
comprehensive series. It is an edition by a specific publisher (Juta), with a
specific title.

The following are examples:

• South African Criminal Law Reports (SACR) — only criminal cases
reported; published from 1990
• Industrial Law Journal (incorporating Industrial Law Reports) —
cases on labour law, published since 1980
• Butterworths Labour Law Reports (BLLR) — cases on labour law;
published since 1994
• Butterworths Constitutional Law Reports (BCLR) — constitutional
cases reported; published from 1994
• Burrell’s Intellectual Property Reports (BIP) (since 1997; previously
 Burrell’s Patent Law Reports)
• Butterworths Arbitration Law Reports (BALR) — published since
1998

A particular court’s decision may be reported in more than one of these

reports, and both in printed (hard copy) and electronic format.

4. Page where case report starts: 505

The number ‘505’ in the case reference indicates that the specific case
report starts on page 505 of that volume. This page number remains
constant in the case reference. To refer to another page in the same
report, the following method is used: ‘In Jeewa v Dönges NO and Others
1950 (3) SA 414 (A) at 422H acting chief justice Centlivres refers to the
audi alteram partem rule.’

5. Court where case was decided: (N)

‘N’ indicates in which division of the Supreme Court (now the High Court)
the case was decided.

See page for court abbreviations on page 101: Beginner-s-Guide-for-Law-

Students-5th-Kleyn.pdf

Outside court proceedings

Resolving disputes outside of the courts
Formal court proceedings (litigation) are not always appropriate for all types of
disputes.

Disadvantages of formal court proceedings:

 Court case takes long to conclude – there are various stages that needs to
be followed.
 Court proceedings are expensive.
 Courts and legal aid clinics are not available in all communities.
 Court proceedings are very formal.
 Court order – one party wins and the other loses.
 Court decisions may take long.

There are less ess formal ways of resolving disputes, collectively known as ADR
(Alternative dispute resolution).
Advantages of ADR?
 Voluntary processes.
 Informal and speedy.
 Saves time and legal fees.
 The parties have a degree of control regarding the date, time and the
pace.
 The ADR processes are confidential and private.
 Parties are free to choose their own facilitator or decision-maker.
 Parties can agree to the terms of the dispute resolution in a written
agreement.
ADR involves:
 negotiation,
 mediation or
 arbitration

Negotiation
 It is a process in which parties can reach a mutually acceptable agreement
on how to settle a dispute / conflict.
Mediation (also referred to as conciliation)
 This is a structured process in which a neutral or acceptable person
(mediator acting as a third party) is appointed to assist parties to resolve a
dispute.
 Types of matters where mediation can be successful: Family law matters
(such as divorce, custody, maintenance, labour matters etc.
Arbitration
 Is a process where one party or all parties to a dispute refer their matter to
a neutral or acceptable third party – called an arbitrator.
 The arbitrator will fairly hear both parties, receive and considers the
evidence and submissions from the parties. After which the arbitrator
makes a final and binding decision, called an award.
The Commission for Conciliation, Mediation and Arbitration (CCMA) assists with
ADR.
Topic 3
THE CONSTITUTION

Key characteristics of the Constitution:

 The 1996 Constitution symbolises a break from previous constitutions in
that it declares itself to be the supreme law of South Africa (section 2 a.k.a
the supremacy clause, where it declares itself as the supreme law of our
Republic all inconsistent law/conduct are invalid).
 The Constitution is a primary source in that it is binding and authoritative.
 The 1996 Constitution also regulates the structure of state and divides the
power of the state between three branches of government: the executive
(that enforces the law); the legislature (that creates laws); and the
judiciary (that applies, interprets and develops the law). This is called the
principle of separation of powers. The logic behind this is to ensure that no
single branch of government can abuse its power — the hope is that the
other two branches of government would step in to keep a potentially
misbehaving branch of government in check.
 Importantly, the 1996 Constitution also includes a Bill of Rights.
 Under section 39(1), the Constitution incorporates the principles of
international human rights law as a source of our law.

The Constitution is important because it:

 is the highest law of South Africa;
 prescribes the most important constitutional principles, values and rights
that allow the members of a society to enjoy their interests and to exist
peacefully;
 governs political issues; and
 governs the state, the community and individuals.

Power (and the exercise of power) is very important in every state. Constitutions
often endeavour to create measures restricting governmental power.
Mechanisms are created in the constitution to protect subjects. Therefore, a
constitution is a contract between ‘the people’ themselves, by which they create
a state, transfer their power to it and then accept its authority.

Preamble
A constitution often starts with a preamble. A preamble is a solemn declaration
which states the basic purpose of the constitution.
Its provisions are usually not binding, but may serve as a guide to the
interpretation of the constitution.
The wording of the preamble, however, implies that it represents the will of all
the people, and thus attempts to give the Constitution legitimacy.

Types of constitutions
a) Written or Unwritten: Not all constitutions consist of one single piece of
legislation. Constitutions may also consist of a collection of conventions
and customs. This is the case in Britain and partly so in Israel. However, in
most countries the constitutional system has one written document as its
primary source (it is codified constitutional law). Ours is written.
b) Flexible or Inflexible: Constitutions may further be divided according to
the ease with which they can be amended. A flexible constitution can be
amended quite easily; it is more difficult to change an inflexible
constitution. Ours is inflexible.
c) Unitary or Federal: This concerns the levels of government. Most states
have one level of government. In such a state there is only one central
government for the whole state. The powers of government are
centralised. Powers may also be decentralised. In such a system the
national (federal) and provincial (regional) levels of government co-exist.
There is a legislature on both the federal and provincial level, making
statutes for the country as a whole and the specific province respectively.
The Constitution stipulates which competences may be executed at which
level. Each province (region or state) has its own executive authority
(cabinet) executing statutes for that province; the executive authority
executes statutes for the whole country. Apart from the courts in each of
the provinces, there is a higher court which binds all of these provinces. A
system in which powers are divided in this way is a federation. Ours is
federal.
d) Sovereign or Subordinate: A constitution may be a document that
merely sets out the structure of the state and the activities of the different
organs of state. The legislature retains the competence to promulgate any
new statute or to amend legislation. Such a constitution is subordinate,
because the legislature can amend the constitution on its own. This means
that Parliament is supreme or sovereign. The constitution may, on the
other hand, be the highest source of authority and thus sovereign. This is
the case if all statutes and executive actions have to comply with the
constitution.

See page 159 on constitutional history of south Africa on: Beginner-s-Guide-for-

Law-Students-5th-Kleyn.pdf
Constitution of the Republic of South Africa, 1996
Similarities to the interim constitution, 1993
 basic rights for everyone, as contained in the Bill of Rights;
 universal adult suffrage (right to vote);
 supremacy of the Constitution (section 2 i.e. the supremacy clause) and
the rule of law;
 non-racialism and non-sexism

Two forms of the system of governance:

 The term Parliamentary Sovereignty means that Parliament is Supreme
over the Constitution.
 The term Constitutional Supremacy means that the Constitution is
Supreme over the Parliament and the Parliament can exercise its functions
only within the bounds of the Constitution.

Co-operative government
A system of co-operative government means that the functions of government
are not only exercised at the national level, but are decentralised to levels closer
to the people.
Three distinct, but interrelated, spheres of government are created at the
national, provincial and local levels.

Legislative authority
Legislative functions are performed in the national, provincial and local spheres.
The legislative function at the national level is performed by Parliament.
Parliament consists of the National Assembly and National Council of Provinces.
 The NCOP’s function is to ensure that provincial interests are taken into
account in the adoption of national legislation.
A provincial legislature is elected in every province. The number of members
differs from province to province, but must be between 30 and 80.
Parliament may pass legislation on any matter, but some matters are classified
as ‘function areas of exclusive provincial competence’ (found in Schedule 5 to
the Constitution).
 The national legislature may intervene to pass legislation on these aspects
only if it is necessary to maintain national security, economic unity or
essential national standards, and to prevent provincial action which is
prejudicial to other provinces.
The Constitution also sets out matters about which both Parliament and
provincial legislatures may legislate: ‘functional areas of concurrent national and
provincial legislative competence’ (Schedule 4 to the Constitution).
 Included are education (excluding tertiary education), housing, public
transport and welfare services
Government in the local sphere consists of municipalities.
 Voters in a particular municipal area elect members of municipal councils.
 The council has the competence to pass by-laws on certain matters.
 However, national and provincial legislation may be adopted to ensure the
effective performance of municipal functions.
National Bills must in principle be approved by both the National Assembly and
the National Council of Provinces. These Bills may be adopted through one of
three processes, depending on the nature of the Bill.
See processes on page 170: Beginner-s-Guide-for-Law-Students-5th-Kleyn.pdf

The Constitution requires that the National Assembly, National Council of

Provinces and provincial legislatures must ‘facilitate public involvement’ in their
own ‘legislative and other processes’ and in similar processes of their
committees.
Doctors for Life International v Speaker of the National Assembly.
In casu:
 a constitutional challenge was brought in respect of a number of health
related statutes on the ground that the NCOP failed to comply with this
obligation
 The Constitutional Court held that, although the legislature may determine
the form of public involvement, in this case the degree of involvement fell
short of the level required by the Constitution.
 The statutes were therefore declared invalid, and Parliament was given
eighteen months to re-enact the legislation in a manner consistent with
the Constitution.

Executive authority
The executive authority also functions in the national, provincial and local
spheres.
The head of the national executive is the President.
 The President is elected by the National Assembly from its members. This
implies that the leader of the majority party in the National Assembly will
usually become President.
 The President, in turn, appoints a Deputy President and Ministers. The
Deputy President assists the President with his work. Ministers head the
different government departments.
  Together, the President, Deputy President and Ministers form the Cabinet.

The head of the provincial executive is the provincial Premier.

 The Premier is elected by the Provincial Legislature from its members. This
implies that the leader of the majority party in the Provincial Legislature
will usually become Premier.
 In turn, the Premier appoints between five and ten members of the
Provincial Legislature to a provincial Executive Council.
 Members of the Executive Council (MECs) administer the provincial
government departments.

Executive functions in the local sphere are performed by municipal councils. As a

result, municipal councils perform both legislative and executive functions.

Judicial authority
According to section 165 of the Constitution, judicial authority vests in the
courts.
The courts are independent and must apply the law impartially and without fear,
favour or prejudice.
No person or organ of state may interfere with the functioning of the courts.
Court decisions bind all persons and organs of state against which they are
directed
 The Constitutional Court is the highest court in all matters, constitutional
or otherwise.
 The Supreme Court of Appeal is the second highest court in all matters.
 Provincial High Courts have jurisdiction in provinces or parts of a province.

The Constitutional Court consists of

 the Chief Justice,
 a Deputy Chief Justice and nine judges.

Practising lawyers, academics and judges of the High Court or Supreme Court of
Appeal may be appointed to the Constitutional Court. However, at least four of
the Constitutional Court judges must already have been judges when they were
appointed to the Constitutional Court.
The President (head of the executive) appoints the members of the court from a
list of names submitted by the Judicial Service Commission (JSC).
The JSC is a panel of experts which advises the government on the
administration of justice.
See page 174 for the composition of the JSC on: Beginner-s-Guide-for-Law-
Students-5th-Kleyn.pdf

Judges
The President also appoints the judges of all other courts on the advice of the
JSC.
The JSC is not involved in respect of the appointment of acting judges, as the
President may appoint acting judges of the Constitutional Court on the
recommendation of the Minister of Justice, ‘acting with the concurrence of the
Chief Justice’.
The Minister appoints acting judges to the other courts ‘after consulting’ the
senior judge of the relevant court. Judges of the Constitutional Court are
appointed for an effective non renewable term of fifteen years, but must retire
when they reach the age of 75 years (Judges’ Remuneration and Conditions of
Employment Act).
All other judges are appointed until they reach the age of 75 years. A judge may
be removed from office only if the JSC finds that he or she ‘suffers from an
incapacity, is grossly incompetent or is guilty of gross misconduct’ (section 177).
In addition, the National Assembly must, by a two-thirds majority, approve the
judge’s removal.

State institutions that support constitutional democracy

1. Public prosecutor
The President appoints the Public Protector. The Public Protector
investigates allegations of improper conduct by government officials but
may not investigate court decisions.

2. Human Rights Commission

The Human Rights Commission must promote respect for and protection of
human rights.

3. The Commission for Gender Equality

A specialised commission, the Commission for Gender Equality, has been
created to promote the equality of women and men in South Africa.
The Commission monitors legislation, conducts educational programmes,
and investigates complaints on gender and sex discrimination

4. The Auditor-General
 An Auditor-General is appointed to monitor and report on the financial
management of government departments

5. The Electoral Commission

The Electoral Commission is composed of at least three persons. It
manages elections and ensures their fairness.

See more on page 177-180: Beginner-s-Guide-for-Law-Students-5th-Kleyn.pdf

The transformative constitution

In a fundamental sense, the Constitution was designed with the aim of
transforming South African society.
K. Klare (1998) said:
 Transformative Constitutionalism is a long-term project of constitutional
enactment, interpretation, and enforcement committed to transforming a
country’s political and social institutions and power relationships in a
democratic, participatory, and egalitarian direction.
 Transformative constitutionalism brings an enterprise of inducing large-
scale social change through nonviolent political processes grounded in law.

The South African Constitution:

 Is written (in one codified source);
 Inflexible (75% majority in National Assembly and support of 6
provinces in National Council of Provinces required to change);
 Has federal elements (semi-federal system) - system of cooperative
government at three levels;
 Replaced parliament as sovereign authority.
Topic 4
LEGISLATION

Legislation as source
Legislation is law laid down by an organ of the state which has the power to do
so. These laws are embodied in writing and are known as ‘statutes’ (or ‘Acts’).
In South Africa, Parliament is the highest organ that can pass legislation on the
national level. The Constitution empowers Parliament to do so.
There are also lower bodies that can pass subordinate legislation, such as
municipalities that enact by-laws.

Under Section 43 of the Constitution, the Legislative authority of the Republic is

vested in the
 Parliament – which passes national legislation (national sphere)
 Provincial legislatures – provincial legislation (provincial sphere)
 Municipal councils – by-laws (local sphere)

Under Section 44 of the Constitution - National legislative authority (Parliament)

 Parliament consists of TWO HOUSES
 National Assembly – 350 - 400 members
 National Council of Provinces – 90 members
 The functions of parliament are:
 Representative function
 Legislative function: Enact, Amend and Repeal
 Legislation is written/codified law referred to as an Act/Statute/Statutory
law or Legislation

Legislation passed by Parliament:

Parliament must consist of representatives of the community who are elected in
a democratic manner. Thus, the community, through its representatives, passes
legislation according to which the entire community lives.
The Constitution now provides for a fully democratic Parliament where the whole
of society can participate in the legislative process. As such, legislation is an
embodiment of laws that have been democratically passed.
Parliament consists of two houses:
 the National Assembly and the National Council of Provinces.
 The purpose of the National Council of Provinces is to give the provinces a
say in national legislation that affects them

When does the parliament pass legislation

 When there are gaps in the law
 When the law doesn’t meet the current needs of society
 When there are defects in existing legislation.

Legislation is an important source of law because:

• Binds the entire society
• Quickest and most effective way to:
• Enact (create) new laws
• Amends (change) laws already in existence
• Repeal (abolish) laws
• Give effect to governmental policy

Power of legislation
Legislation is a very powerful source of law.
It is a primary source of law and is binding authority. In principle it binds the
whole society. It is the quickest and most effective way to amend old laws and
create new ones.
Overnight a new statute can change the existing law, whether it is other
statutes, a court decision, a rule of common law, a custom or the opinions of
modern authors.
Parliament passes legislation when:
1. there are gaps (lacunae) in the law;
2. the law no longer corresponds to needs in modern society;
3. there are defects or loopholes in existing legislation.
How is a statute made?
1. When a need for new legislation arises, the government may draft a green
paper that puts forward various policy options on the particular topic.
 This is published for public comment.

2. Thereafter a white paper is drafted which states government policy. The

public may again comment.
3. Then experts draft what is called a Bill concerning the matter.
 The Bill is not the final statute; it is only a proposal.
 Usually, the Bill is published in the Government Gazette to allow public
comment on the Bill.

4. The Minister responsible for the matter introduces the Bill in the National
Assembly for the so-called first reading.
5. After introduction the Bill is referred to a portfolio committee.
 The committee investigate the details of the Bill, they study the public
commentary and, where necessary, recommend changes and make
new proposals.

6. The committee’s recommendations are contained in a report which is then

presented to the National Assembly for the second reading.
 During the second reading the purpose and principles, and not the
details, of the Bill are debated.
 At the end of the debate proposals (amendments) may be made
concerning detail issues in the Bill. Such amendments are considered
by the portfolio committee, after which it again drafts a report.
 The National Assembly takes the report into consideration and then
votes on the second reading of the Bill.

7. Once the Bill has been approved by the National Assembly it is referred to the
National Council of Provinces for approval.
 The same procedure is followed there.
 Should the National Council of Provinces reject the Bill, there is a
disagreement between the two houses and the Constitution prescribes
how it must be resolved.
 If the National Council of Provinces approves the Bill, it is referred to
the President for assent. The President signs the Bill and now it is a
statute (or an Act)

Therefore, that in principle a Bill must be approved by both houses of Parliament,

that Parliament itself does not debate the details of a Bill, and that a Bill
becomes an Act only once the President has signed it.
Not all Bills are treated in this manner. There are exceptions.
Some Bills can first be introduced in the National Council of Provinces.
When does legislation come into force?
The fact that an Act has been made does not mean that it is in force.
Usually an Act comes into force on the date of its publication in the Government
Gazette, but the Act itself may stipulate that it will come into force only at a later
date.
Since 1994, however, South Africa has had 11 official languages.
Acts are now promulgated in English, and usually in another official language.
The President signs only the English text. Some acts are promulgated only in
English

Application of legislation
The courts have to apply legislation that is in force.
The court must then judge the matter before it in light of the statute concerned,
if it applies.
Some pieces of legislation apply uniformly to the entire population.
Other statutes will only apply to certain circumstances and there may be an
‘application clause’ contained in the Act stipulating when the Act will apply.
The court will have to establish the meaning of the statute. It must determine
whether there was, in fact, a contravention of the statute.

Before the interim Constitution came into force, the principle of parliamentary
sovereignty applied.
 This means that Parliament was supreme and that the courts, in principle,
had no testing right (right of judicial review) with respect to legislation.
Accordingly, they could not test legislation against any norm or standard, such as
the principles of justness, fairness or equality, and strike down legislation which
did not comply with those norms.
The only occasion when the courts did have the power to strike down legislation
was when Parliament had not followed the correct procedures and formalities
(manner and form) in passing the legislation.

When does legislation stop being in force?

There are three main ways in which the force of legislation might come to an
end:
1. Repeal
2. Judicial review (the testing rights of courts)
3. Sunset clauses

1. Repeal
Parliament may decide to bring an existing piece of legislation to an end.
It will pass a new statute that either expressly or implicitly repeals an old law. If
there is express repeal, the statute might simply say that a certain Act is hereby
repealed.
However, it is possible for Parliament to pass a new piece of legislation that is in
absolute conflict with an older piece of legislation.
As far as possible, courts will aim to reconcile two pieces of legislation that
appear to conflict with one another.
But if the conflict is irreconcilable then the newer Act will implicitly repeal the
older Act.
On the other hand, it is possible for smaller parts of legislation to be changed,
without completely undoing the legislation’s legal effect.
Changing legislation through a parliamentary process is referred to as the
amendment of legislation.

2. Judicial review (the testing rights of courts)

The interim Constitution and its successor, the final Constitution, endow the
courts with a testing right.
Both Constitutions contain a Bill of Rights, a list of human rights which the
Constitution guarantees to all citizens.
The Constitution seeks to entrench these rights and to prevent other statutes
from infringing or violating them.
the Constitution provides the courts with the power to review legislation so that
they can test all legislation against the provisions of the Constitution.
when a court f inds legislation, or any part of it, to be unconstitutional, the court
declares the legislation invalid in terms of section 172 of the Constitution.

3. Sunset clauses
This is when the legislation contains a clause stipulating that the legislation will
stop being in effect on a particular date.
Finding legislation
Reference to a statute
Every year Parliament passes many laws. In 1996, for example, it adopted 107
statutes. In 2017, for example, it adopted only 18 Acts. These statutes are
numbered chronologically as they are published in the Government Gazette, for
example:
Choice on Termination of Pregnancy Act 92 of 1996

Accessing statutes
Statutes are published in separate Government Gazettes.

Is it in force?
If nothing is mentioned in the statute, it comes into force at publication. Often
the statute only comes into force later. In the final section of the statute the later
date is either specified or it is stated that it will come into force when the
President promulgates a date in the Government Gazette.
On the first page of existing legislation the date of when the Act came into force
is given. The Choice on Termination of Pregnancy Act entered into force (or
‘commenced’) on 1 February 1997.
Also keep in mind that statutes may be repealed.

Is it updated?
In order to account for developments in society, and because omissions or
defects in existing legislation are identified, laws are from time to time amended.
To avoid confusion, the most recent version of an amended statute is sometimes
referred to as follows: the Choice on Termination of Pregnancy Act 92 of 1996 (as
amended).
Many statutes are also supplemented by subsequent regulations or ‘notices’, in
which the detailed implementation of aspects of the law is spelled out.

Content of a state
 Full name and citation
 Dates of assent and commencement
 Long title
 Preamble
 Various sections (like definitions), subsections, and schedules.
Key content
(a) Short title
(b) Date assented to and date of commencement
(c) Long title (states purpose of Act)
(d) Various sections like the Definintions section
(f) Subsections of the sections

Citing a section of a statute

Reference to the subparagraph of section 2 above is as follows:
Section 2(1)(b)(i) of Act 92 of 1996

Internal structure of a Statute/Act:

• Short title of the Act
• Date when signed by President
• Date on which Act came into effect
• List of legislation that amends this Act
• Long title of the Act with explanation if its purpose
• Preamble
• Contents of the different chapters of the Act
• Section 1 of the Act – provides definition of words in the Act
Topic 5
PRECEDENT
 Court decisions or case law.

Courts are institutions that apply the law on a daily basis.

 When people cannot solve their disputes themselves, or when people are
suspected of having committed criminal offences, such cases may end up
in court.
 The court must then ascertain the law, apply it to the case and give
judgment.

The term ‘court’ means the presiding officer, for example the judge or
magistrate.
 Judges and magistrates, like all lawyers, find the law which they must
apply in legal sources. In other words, they look at legislation, rules of
common law, customary law, and custom that may apply to the particular
case before them.

Under section 165 (Judicial authority):

1. The judicial authority of the Republic is vested in the courts.
2. The courts are independent and subject only to the Constitution and the
law, which they must apply impartially and without fear, favour or
prejudice.
3. No person or organ of state may interfere with the functioning of the
courts.
4. Organs of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality, dignity,
accessibility and effectiveness of the courts.
5. An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
6. The Chief Justice is the head of the judiciary and exercises responsibility
over the establishment and monitoring of norms and standards for the
exercise of the judicial functions of all courts.

The doctrine of judicial precedent (stare decisis)

Courts must also take into account their previous judgments in similar cases,
because they are bound to the approach followed in the past.
Previous judicial decisions are therefore also a primary source of law, and the
way in which the law was applied there is authoritative.
The reason for this lies in the system of judicial precedent, also called the
doctrine of stare decisis, which applies in South Africa.
 Stare decisis literally means ‘to stand by previous decisions’. According to
this doctrine, previous judgments create (binding) precedents which must
be followed.
 This doctrine comes from English law.
 The underlying principle of the doctrine is that the law which was applied
to a specific factual situation should be applied to all similar situations.
The question will often arise whether an existing precedent is applicable to the
case before a court.
1. Material facts: If the facts of a case that you are dealing with are
materially similar to those of an existing precedent, then the cases are
said to be analogous (or material) and so the precedent will apply to your
case.
2. Distinguishable facts: If the facts of the existing precedent are not
materially the same as those in the case before the court, the two cases
can be said to be distinguishable. The court then does not have to apply
the precedent to the facts before it.

The system of judicial precedent means that lower courts are bound by the
decisions of higher courts, and, furthermore, that a court is also bound by its own
previous decisions, unless they are wrong.
This implies the following:
• There is a hierarchy of courts.
• Judgments must be reported (published) in law reports so that
precedents are easily accessible

Hierarchy of courts:
1. Superior courts, where the constitutional court is the highest court, followed
by the supreme court of appeal, then the high court. Then
2. Lower courts (or magistrate’s court), where regional courts are followed by
district.

Application of the doctrine of precedent

The hierarchy of the courts dictates the manner in which the doctrine of judicial
precedent is applied.

The hierarchy of the courts dictates the manner in which the doctrine of judicial
precedent is applied.
1. The Constitutional Court is the highest court in South Africa.
When the 1996 Constitution was first passed, a distinction was drawn
between so-called ‘ordinary courts’ and the Constitutional Court.
 Ordinary courts generally had jurisdiction over all legal matters while
the Constitutional Court could only make pronouncements about
constitutional matters.
 Therefore, it was said in the past that the Constitutional Court was the
‘highest court in all constitutional matters’, while the Supreme Court of
Appeal was the highest court for ‘all other matters’.
Under section 167(3) The Constitutional Court—
(a) is the highest court of the Republic; and
(b) may decide— (i) constitutional matters; and (ii) any other matter, 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 that Court; and
(c) makes the final decision whether a matter is within its jurisdiction.’

As such, the Constitutional Court is no longer only a court of constitutional

matters.
It is the apex court of South Africa and may decide both constitutional issues
and other cases — those other cases only being heard if certain conditions
are met.
The Constitutional Court is bound by its own previous judgments, unless if
they are now held by itself to be clearly wrong. All other courts in South Africa
are bound by judgments of the Constitutional Court

2. The Supreme Court of Appeal is the second highest court in the

hierarchy.
It is bound by its own previous judgments, unless they are wrong.
The judgments of this court bind all subordinate courts in the country.
3. There is one High Court of South Africa.
There are still divisions of the High Court in all of the provinces, but they are
administratively regarded as being branches of one tree.
These High Court divisions are in the first instance bound by judgments of the
Constitutional Court and Supreme Court of Appeal.
If there are no such applicable judgments, the High Court is bound by its own
previous judgments, unless they are wrong. A single judge is bound by the
decisions of a full bench (two or more judges).

4. Lower courts are bound by judgments of the Constitutional Court and

the Supreme Court of Appeal.
In the absence of such applicable judgments, they are bound by the
judgments of the High Court in their respective provinces.
The judgments of lower courts do not serve as precedents which must be
followed; therefore they are not reported
Topic 6
JURISDICTION
Class notes

Introduction
Jurisdiction: The competence/authority of a court to hear a specific matter.

Relevant sections in the constitution:

 Section 165 (judicial authority in the courts of South Africa, and that they
are independent and must apply the law impartially without fear, favour or
prejudice)
 Section 34 (in the bill of rights, everyone has the right to hear any dispute
to be resolved in a court of law, everyone has access to the courts), and
 Section 166 (hierarchy of courts)

Upper court:
 Constitutional court
 Supreme court of appeal’
 High court

Lower court:
 Magistrates courts (regional and district courts)

Factors to consider when establishing a court’s jurisdiction:

 Geographical area
 Type of matter being heard
 Whether the matter is appearing before the court for the first time or not

The correct court:

 Its important to identify this court
 You have courts that deal with specific or specialised nature (like appeals
for a labour matter would go to the labour appeal court).
 Some courts deal with different types of issues HC and Mag courts, they
aren’t limited in certain types of matters.
 Some courts are limited in their jurisdiction (like how a matter must be
referred to the HC if its over a certain amount).
 If the wrong court is used, they will not have jurisdiction and the case will
be dismissed.
What to consider when accepting an instruction from a client:
 The appropriate forum: which court has jurisdiction
 Does the client have legal standing: capacity
 What is the cause of action: do they have a valid claim in law
 Which legal procedure: is it civil, or civil, or constitutional case.
 How quickly must the legal action be instituted: when should it start
 Whether notice in the form of a letter of demand should be given to the
opponent before legal action is instituted: some cases require this, e.g.
when being served.

Factors to consider when establishing a court’s jurisdiction:

 Geographical area
 Type of matter being heard
 Whether the matter is appearing before the court for the first time or not

1. Geographical area
Each court has jurisdiction within a specific geographical area in the country.
There must be some connecting factor between the persons before the court
and the court’s geographical area of jurisdiction.
For example, in criminal cases, the area where the crime is committed is usually
where the accused is tried. In civil cases, the place where the cause of action
arose, or the defendant’s domicile generally provides the clue as to which courts
could have jurisdiction over the dispute
 The Magistrate’s Court: Each province is divided into regional
divisions which again are subdivided into magisterial districts. A
Regional Court has jurisdiction within a particular regional
division and a District Court within a particular magisterial
district.
 The High Court: it has jurisdiction within a particular provincial
area. Each of the nine provinces has its own seat of the High
Court. Some provinces have a provincial High Court and a local
division of the High Court. In Gauteng, for example, there is the
‘Gauteng Division, Pretoria’ which is located in Pretoria, and the
‘Gauteng Local Division, Johannesburg’. The Johannesburg local
division’s area of jurisdiction is restricted to Johannesburg.
However, the Pretoria division’s area of jurisdiction covers all of
Gauteng (including Johannesburg). So, in Johannesburg the two
courts have ‘concurrent jurisdiction’.
 The Supreme Court of Appeal has jurisdiction within the
whole geographical area of South Africa. It has its seat in
Bloemfontein, Free State.
  The Constitutional Court has jurisdiction within the whole
geographical area of South Africa. It has its seat in Braamfontein
in Johannesburg, Gauteng. It functions nationally, and it doesn’t
matter where the constitutional matter arose from.

2. Type of matter:
The type of case and compensation or punishment.
There is a distinction between criminal, civil, and constitutional matters.

Criminal cases:
 Crimes against the state.
 The aim of these cases is to prosecute people for crimes committed.
 The court’s jurisdiction is determined by the kind of offence/crime.
 The next step is to identify the possible sentence given by the court.

Civil cases:
 The jurisdiction is determined by the amount being claimed.
 Also, the nature of relief being sought (compensation for damages or a
declaration of rights (capacity, presumption of death etc)).
 High Court has jurisdiction in matters relating to the change of status (e.g.
declaring someone mentally ill).

When looking at criminal and civil jurisdiction, we must ask:

1. What type of case is this?
2. What is the punishment or amount being claimed?

Constitutional cases:
 These matters deal with the interpretation, application, and/or
enforcement of the constitution.
 Situations dealing falling under constitutional matters: infringement of
rights, constitutionality of conduct by government, and constitutionality of
legislation and other laws.

3. Appearing for the first time:

 Whether or not the case is appearing before the court for the first time
(courts of first instance, appeals and reviews)
 Courts of first instance: ‘court a quo’.
  Each court has its own rules about whether it can hear certain matters as
a court of first instance.
 The Supreme Court of Appeals can never be the court of first instance,
because it only specialises with the appeal of an existing (previously
heared) case.
 The High Court can be a court of first instance, it can adjudicate appeals
and also perform reviews..

Appeal Review

An appeal is lodged when the Review takes place in the case of

court has allegedly erred in its a possible irregularity in the
decision. On appeal, the court proceedings. For example, if the
does not listen to oral evidence judge was biased or did not
about the facts of the case. The afford one party a fair
court only studies the typed opportunity to present their case,
record of the court of first then a review would be the
instance, in which all the appropriate remedy. Certain
evidence is documented, and criminal cases heard by
listens to argument by the legal Magistrate’s Court, in which
representatives. The appeal may heavy sentences were imposed,
be upheld, which means that the are automatically reviewed by
decision of the court of first the High Court. In other cases, an
instance is set aside. The appeal application must be brought to
can also be dismissed, in which the High Court for review. The
case the decision of the court of High Court can also review
first instance remains in force. decisions of quasi-judicial
Usually, appeals are made to tribunals.
courts higher in the hierarchy
than the court of first instance.

Jurisdiction of courts
1. Constitutional court
Section 167 of the constitution.
The con court is the highest court in all constitutional and non-constitutional
matters. Its geographical area is the entire south Africa.
It can hear appeals from the High Court and the Supreme court of appeal.
In con court, the presiding officers are, the chief justice, the deputy chief justice,
and 9 other judges.
It has exclusive jurisdiction, meaning that there are matters that only the con
court can hear, and no other courts can.
It can be a court of first instance if the matter is a constitutional matter.
Section 167(4) the exclusive matters that the con court can deal with : The con
court may
a. Decide disputes between organs of stat in the national provincial sphere
concerning the constitutional status, powers and functions of anu of those
organs of state
b. Decide on the constitutionality of any parliamentary or provincial bill, but
may do so only in the circumstances anticipated in section 79 or 121
c. Decide applications envisaged in section 80 or 122
d. Decide on the constitutionality of any amendment to the constitution
e. Decide that parliament or the president has failed to fulfil a constitutional
obligation, or certify a provincial constitution in terms of section 144

Some courts (HC and SCA) have concurrent jurisdiction over constitutional
matters, but those judgements must be confirmed by the con court.
The con court has concurrent jurisdiction (with the HC and SCA) over appeals.

2. SCA
Regulated by section 168 of the constitution.
Presiding officers: president, deputy president,’
It has jurisdiction over the whole of south Africa
It can hear all matters, except those of section 167(4) (exclusive areas of the con
court)
It can only function as a court of appeal and can not be a court of first instance
It deals with appeals from HC decisions, that can be civil or criminal cases
It can decide on issues that deal with appeals and those defined by an Act of
government.
It also has the power to develop the common and customary law to align it with
the constitutions.
It can decide on constitutional matters, but that decision must be confirmed by
the con court

3. High court
Regulated by section 169 and 173 of the constitution.
Presiding officers:
Each province has a high court division, whose division has jurisdiction over that
province. Some divisions of high court have local divisions; e.g High court,
Gauteng, Pretoria or Johannesburg.
It can be a court of first instance in certain matters
It has jurisdiction in criminal matters. It can hear or try any criminal offence, and
impose a sentence of more than 15 years and a fine exceeding R600000
Its jurisdiction is limited to a particular geographic area (its own division’s
province)
The HC has the power to regulate it own processes and develop the common law
to align with the constitution (sec 173)
It also has jurisdiction over civil matters if the claim exceeds R400000 or is for a
specific performance without damages as an alternative, if the claim involves
issues of status.
It has concurrent jurisdiction (with regional court) when it comes to divorce
matters.
It also has concurrent jurisdiction to hear appeals from lower courts, or a
judgement made from a single judge of the high court (by a full bench).
It may decide on a constitutional matter (except for those in 167(4), but that
decision must be confirmed by the con court. It has the power to declare an act
of parliament or parliamentary conduct unconstitutional.
It can also hear review cases of criminal and civil cases of lower courts.

Jurisdiction of lower courts

Regulated by the magistrates’ court act 32 of 1994 and by section 170 of the
constitution
They are creatures of statute, as in their power are limited to what the legislation
allows.
Presiding officers: magistrates
There are matters that lower courts cannot hear: validity or interpretation of
wills, status issues regarding to mental capacity, and those that deal with
specific performance.

1. regional courts
They have jurisdiction with a certain geographical are or region/district.
Only functions as a court of first instance, and can not appeal or review.
It can hear matters that exceed R200000 but not exceeding R400000
It has concurrent jurisdiction in divorce cases
Criminal jurisdiction: it can hear any matter except treason (this is heard by the
HC).
Fines cannot exceed R600000 and sentences cannot exceed 15 years
imprisonment.
It cannot hear and decide on constitutional matters (unless authorised by an Act
of parliament).
It can only hear certain civil matters that are limited to a certain amount.

2. district court
It has jurisdiction with a particular district
Regulated by the magistrates’ courts act and section 170 of the constitution
It cannot hear appeals and reviews, but is always the court of first instance.
Civil jurisdiction: less than R200000
Criminal jurisdiction: it can hear all matters except for treason
Its sentencing is limited to R120000 or less and not more than 3 years
imprisonment
It has no jurisdiction over constitutional matters unless authorised by an Act of
government.

Special courts
Deal with specialised cases.
They can decide on constitutional matters only if authorised by legislation
They are on the level of higher and lower courts

Chief’s and headmen’s court

Community courts, where the headmen is tasked with aligning the community
laws with the community’s convictions.
Informal proceedings.
Can mediate marriage disputes, but not gve divorce orders

Small claims court

Under small claims court act
Resolves civil claims of more than R15000
Quick persons, and there’s no legal representation required.
Decisions in this court is final, but a review can be done if theres an irregularity
The presiding officer is the commissioner, who can be a lawyer or legal scholar
It only deals with only small claims

Childrens court
Deals with issues that relate to children
The mag court also functions as a childrens court as well, thus they both have
concurrent jurisdiction
The proceedings of this court are confidential

Maintenance court
Same level as the mag courts
Deals with the maintenance of children and majors who cant support themselves
There’s an investigation officer who reports to the court, which makes a ruling on
the evidence and circumstances.

Labour court and labour appeal court

Deals with labour and employment matters.
Under the LRA
It has concurrent jurisdiction with other courts on matters that concern the
violation of fundamental rights of labour matters
It can determine its own processes and has the power to develop the common
law
It is also on the same level as the HC; it just specializes in labour court.
The LAC is the final court of appeal by the decisions of the labour court.
It has the power to develop its own processes and develop the common law.

Land claims court

Under the restitution of land rights act
Decides on land claims matters (mostly stemming from apartheid land
dispossession).
Operates at the same level as the HC
Can develop its own processes and develop the common law.

Equality court
Under the PEPUDA 4 of 2000
Complaints about harassment, hate speech and violations of the right to equality.