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Constitutional Court

The Constitutional Court was established in 1996 by the Constitution of the Republic of South Africa. The court is situated at Constitutional Hill Precinct in Braamfontein, Johannesburg. There are 11 judges of the Constitutional Court, namely a Chief Justice, Deputy Chief Justice and 9 Judges.  A matter must be heard by at least 8 judges. 

The Constitutional Court is the apex court in South Africa. Its decisions cannot be changed by any other court. The court decides constitutional and general matters. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution. General matters are heard if the Constitutional Court grants leave to appeal. A general matter is one that is of general and public importance.

The Constitutional Court makes the final decision whether a matter is within its jurisdiction.

Only the Constitutional Court hears –
(a) Disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
(b) The constitutionality of any parliamentary or provincial Bill;
(c) The constitutionality of any amendment to the Constitution;
(d) A matter that Parliament or the President has failed to fulfil a constitutional obligation;
(e) A matter to certify a provincial constitution in terms of section 144 of the Constitution.

A matter may be brought directly to the Constitutional Court or appealed directly to the Constitutional Court from any other court.  Leave of the Constitutional Court is required to do so.

Website: www.constitutionalcourt.org.za

Supreme Court of Appeal

The Supreme Court of Appeal (SCA) is based in Bloemfontein in the Free State.  It was established in 1910 as the Appellate Division. It is designated as the Supreme Court of Appeal by the Constitution. The court consists of a President, a Deputy President and a number of judges of appeal.

Ordinarily, proceedings are presided over by three or five judges, depending on the nature of the appeal. An appeal in a criminal or civil matter may be heard before a court consisting of three judges. A court consisting of a larger number of judges hear a matter of importance.

The SCA decides appeals except in labour and competition matters. Appeals to the SCA emanate from the High Court of South Africa or a court of a similar status to the High Court. Except for the Constitutional Court, no other court can change a decision of the SCA. The SCA may change its own decision.

The final decision of the SCA is the one supported by most of the judges listening to the case. If a judgement is not agreed to by a majority of the judges, the matter is adjourned and recommenced afresh before a new court. The President of the SCA determines the constitution of the new court. 

Website: www.supremecourtofappeal.org.za

High Courts

The High Court of South Africa consists of the following Divisions:
 (a)   Eastern Cape Division, with its main seat in Grahamstown.
 (b)   Free State Division, with its main seat in Bloemfontein.
 (c)   Gauteng Division, with its main seat in Pretoria.
 (d)   KwaZulu-Natal Division, with its main seat in Pietermaritzburg.
 (e)   Limpopo Division, with its main seat in Polokwane.
 (f)   Mpumalanga Division, with its main seat in Mbombela.
 (g)   Northern Cape Division, with its main seat in Kimberley.
 (h)   North West Division, with its main seat in Mahikeng.
 (i)   Western Cape Division, with its main seat in Cape Town.

Each Division of the High Court consists of a Judge President, one or more Deputy Judges President and judges. The number of judges in each Division are determined in accordance with prescribed criteria and approved by the President.

Each Division has an area of jurisdiction which comprises of any part of one or more provinces. Each Division has a main seat and one or more local seats. A local seat has its own (exclusive) area of jurisdiction. Appeals arising from a decision of a single judge or of a Magistrate’s Court within the local seat, may, by direction of the Judge President be heard at the main seat of the Division. The main seat has concurrent (the same) appeal jurisdiction over a local seat. Judges are assigned within the Division by the Judge President.  The High Court may sit elsewhere than the main or local seat to hear a matter, as determined by the Judge President after consulting the Minister. The reasons for doing so are expediency or the interests of justice.

A civil matter heard by a court of first instance, meaning that the matter is not an appeal matter, is presided over by a single judge.  Any matter may be heard by a court consisting of not more than three judges. A single judge hearing a civil matter may discontinue the hearing and refer it for hearing to the full court of that Division. This is done in consultation with the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge.  

The law relating to criminal procedure determines the number of judges hearing a criminal case as a court of first instance.

Two judges hear any civil or criminal appeal. If the judges hearing the appeal do not agree, then at any time before a judgment is handed down, a third judge will be added to hear the appeal. The decision of the majority of the judges of a full court of a Division is the decision of the court. Where the majority of the judges disagree, the hearing is adjourned and commenced from the start (de novo) before a court consisting of three other judges.

The High Court decides constitutional matters, with two exceptions. The Constitutional Court may agree to hear the matter directly or an Act of Parliament may assign another court of a status similar to the High Court to hear the constitutional matter. The High Court decides other matters that have not been assigned to another court by an Act of Parliament.

The jurisdiction of the High Court to hear any matter includes -
(a) All persons residing or being in the Division;
(b) All causes arising and all offences triable within its area of jurisdiction;
(c) All other matters which it may legally recognise;
(d) Appeals from all Magistrates' Courts within the area of the Division; and
(e) Review of the proceedings of Magistrates’ Courts.

Local and Main Seats of the Divisions of the High Court

DIVISION

COURT AND ITS MAIN SEAT

COURT AND ITS LOCAL SEAT(S)

Eastern Cape

 

 

Eastern Cape High Court, Grahamstown

 

 

Eastern Cape High Court, Bhisho

Eastern Cape High Court, Mthatha

Eastern Cape High Court, Port Elizabeth (Gqeberha)

Free State Division

Free State High Court, Bloemfontein

 

Gauteng Division

North Gauteng High Court, Pretoria

South Gauteng High Court, Johannesburg

KwaZulu-Natal Division

KwaZulu-Natal High Court, Pietermaritzburg

KwaZulu-Natal High Court, Durban

Limpopo Division

 

Limpopo High Court, Polokwane

 

Limpopo High Court, Lephalale

Limpopo High Court, Thohoyandou

Mpumalanga Division

Mpumalanga High Court, Mbombela

Mpumalanga High Court, Middelburg

Northern Cape Division

Northern Cape High Court, Kimberley

 

North West Division

North West High Court, Mahikeng

 

Western Cape Division

Western Cape High Court, Cape Town

 


The area of jurisdiction of each of these courts is the area of jurisdiction or part of the area of jurisdiction, as the case may be, of the Division in question.

Website: https://www.judiciary.org.za/index.php

Circuit Courts of the Divisions of the High Court

Circuit courts are part of the High Court. Circuit courts serve far flung and rural areas. Circuit courts are established by the Judge President of a Division by way of a notice in the Gazette. A Circuit court’s jurisdiction applies within the area of the Division. The area of jurisdiction of a Circuit court is the circuit district. Circuit courts adjudicate civil or criminal matters. The boundaries of a circuit district may be altered by notice in the Gazette. Circuit courts are held at least twice a year. The court is presided over by a judge of the Division. The judge president of the division determines the times and places for the sittings of the court to hear the matters.

Website: https://www.judiciary.org.za/index.php

Important officers in a High Court Division:

The Registrar of the High Court - The functions of a registrar are mainly administrative. The registrar also has semi-judicial duties, e.g. issuing civil process (summonses, warrants, subpoenas) and so on. Other important duties of the registrar are that of taxing-master for that particular High Court division. Registrars also compile case lists, arrange available courts, lend assistance to judges in general and keep records.

The Family Advocate- The Family Advocate assists the parties to reach an agreement on disputed issues, namely custody, access and guardianship of children. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to custody, access or guardianship.

The Master of the High CourtThe Master's Branch is there to serve the public in respect of:

  • Deceased Estates;
  • Liquidations (Insolvent Estates);
  • Registration of Trusts;
  • Tutors and Curators; and
  • Administration of the Guardian’s Fund (minors and mentally challenged persons).

The Sheriff of the court - The Sheriff is an impartial and independent official of the Court appointed by the Minister of Justice and Constitutional Development who must serve or execute all documents issued by our courts. These include summonses, notices, warrants and court orders.

The Directors of Public Prosecutions - are responsible for all the criminal cases in their provinces, so all the prosecutors are under their control. The police bring information about a criminal case to the Director of Public Prosecutions or his/her representative prosecutors. The Director of Public Prosecutions or his/her representative prosecutor then decides whether there is a good reason to have a trial and whether there is enough information to prove in court that the person is guilty.

The State Attorney - The State Attorney's Division of the Department of Justice functions like an ordinary firm of attorneys, except that its clients are the different departments of government and not private individuals. The state attorney's major function is to protect the interests of the State by acting for all government departments and administrations in civil cases, and for officials sued in their official capacity.

Tax Courts

Tax Courts are established by the President of the Republic by proclamation in the Gazette. In March 2003 the tax courts were established for areas. The special income tax courts constituted before 1 April 2003 for the hearing of income tax appeals were abolished. A tax court is established for the area of the Division of the High Court.   

Division of the High Court of South Africa

Seats of tax courts

Western Cape Division

Cape Town

Eastern Cape Division

Grahamstown and Port Elizabeth (Gqeberha)

Northern Cape Division

Kimberley

Free State Division

Bloemfontein

Gauteng  Division

Pretoria and Johannesburg

KwaZulu-Natal

Durban


The tax court hears tax appeals.  A tax court is presided over by a judge or an acting judge of the High Court, who is the president of the tax court. The judge is assisted by an accountant and a representative of the commercial community. In appeals relating to the business of mining or the valuation of assets, the representative must be a registered mining engineer; or a sworn appraiser. Three judges hear a dispute if a dispute exceeds R50 million; or SARS and the ‘appellant’ jointly apply to the Judge-President.

The Judge President of the Division of the High Court nominates and seconds a judge or an acting judge of the division to be the president of the tax court. A secondment applies for a period, or for the hearing of a particular case.

The President of the Republic appoints the panel of members of a tax court for a term of office of five years. A member is eligible for reappointment for a further period or periods as the President may think fit.  The President of the Republic may terminate the appointment of a member at any time for misconduct, incapacity or incompetence. A member’s appointment lapses in the event that the tax court is abolished.  A member of the tax court must perform his/her functions independently, impartially and without fear, favour or prejudice.

The Commissioner of the South African Revenue Services appoints the registrar of the tax court. The registrar and persons appointed in the office of the registrar are SARS employees.

When the tax court sits to hear an appeal, the proceedings are not public. The president of the tax court may in exceptional circumstances, on request of any person, allow that person or any other person to attend the sitting. In such a matter, the court considers any representations made by the ‘appellant’ and a senior SARS official who appears in support of the assessment or ‘decision’.

The tax court makes the following orders in appeals -  
(a) Confirm an assessment or decision;
(b) Order an assessment or decision to be altered; or
(c) Refer an assessment back to SARS for further examination and assessment.
In the case of an appeal against an understatement penalty imposed by SARS, the court may reduce, confirm or increase the understatement.

Appeal against the decision of the tax court
The taxpayer or SARS may appeal against a decision of the tax court. An appeal against a decision of the tax court lies—
(a) to the full bench of the Provincial Division of the High Court which has jurisdiction in the area in which the tax court sitting is held; or
(b) to the Supreme Court of Appeal, without an intermediate appeal to the Provincial Division, if—
(i) the president of the tax court has granted leave under the rules; or
(ii) the appeal was heard by the tax court

Labour Courts and Labour Appeal Courts

The Labour Courts have the same status as a High Court. They adjudicate matters relating to labour disputes between an employer and employee.

It is mainly guided by the Labour Relations Act which deals with matters such as unfair labour practices. The Labour Appeal Court hears appeals against decisions in the Labour Court and this is the highest court for labour appeals.

Website: Labour Courts (judiciary.org.za)

Land Claims Court

The Land Claims Court specializes in dealing with disputes that arise out of laws that underpin South Africa’s land reform initiative. These are the Restitution of Land Rights Act, 1994, the Land Reform (Labour Tenants) Act, 1996 and the Extension of Security of Tenure Act, 1997.

The Land Claims Court has the same status as the High Courts. Any appeal against a decision of the Land Claims Court lies with the Supreme Court of Appeal, and if appropriate, to the Constitutional Court. The Land Claims Court can hold hearings in any part of the country, if it thinks this will make it more accessible and it can conduct its proceedings in an informal way if this is appropriate, although its main office is in Randburg.  

Website: Land Claims Court (judiciary.org.za)

Magistrates’ Courts

The Magistrates’ Courts are the district courts and the regional courts.

The district courts hear limited types of civil cases. They cannot deal with certain matters such as divorce, arguments about a person's will and matters where it is asked if a person is mentally sane or not.

The types of civil matters that the magistrates’ courts hear are set out in the Magistrates Courts Act (32 of 1944 as amended). With effect from 27 March 2014, district courts hear matters up to the amount of R200 000. Regional courts hear civil matters above R200 000 up to and including 400 000. The Minister may change these amounts at any time by notice in the Gazette.

Some of the civil matters that the Magistrates Courts hear are:
(i) delivery or transfer of any property, movable or immovable;
(ii) ejectment against the occupier of any premises or land;
(iii) matters arising from a mortgage bond;
(iv) matters arising out of a credit agreement;
(v) other matters not already set out above, such as claims for damages caused negligently to a vehicle or injuries to a person.

Divorces
In addition to civil matters, a regional court hears:
(a)  the nullity of a marriage or a civil union;
(b) divorces and ancillary matters; and
(c) matters in terms of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998). A regional court in these matters has the same jurisdiction as a High Court. The Regional Magistrate may be assisted by two assessors to advise on questions of fact.

Criminal matters in the Magistrates’ Courts
The State prosecutes people who are charged with breaking the law. The criminal cases are held in the criminal courts. Criminal Courts can be divided into two groups:

Regional Courts
A Regional Magistrate makes the decisions in a Regional Court, sometimes with the support of lay assessors.

The Regional Courts deal with serious cases such as murder, rape, armed robbery and serious assault. These courts do not hear treason cases. The Criminal Law (Sentencing) Amendment Act (38 of 2007) obliges the court to sentence a person to life imprisonment for offences such as murder or rape. The convicted person must prove “substantial compelling” circumstances in order for the court to impose a sentence less than life imprisonment. A Regional Court may impose a maximum fine of R600 000 and a maximum sentence of 15 years in common law offences (no statute or act of Parliament determines the sentence for the offence). A statute may prove for a maximum term of imprisonment in excess of 15 years for specific offences. An example is the Drugs and Drug Trafficking Act (140 of 1992). The maximum sentence of imprisonment for dealing in drugs is 25 years.

District Courts
The district courts try the less serious cases. They do not hear cases of murder, treason, rape, terrorism, or sabotage. The maximum term of imprisonment in common law crimes (crimes that are not specified by a statute / an act of Parliament) is 3 years. The maximum fine is R120 000. A statute may provide for a maximum term of imprisonment in excess of 3 years for specific offences that are heard in the district magistrates’ courts.

Specialised Magistrates Courts
There are a number of specialised courts located at the level of the Magistrates’ Courts that deal with certain types of matters. They are the children’s courts, commercial crime courts and sexual offences courts.

Specialised Commercial Crimes Courts (SCCCs)

The Specialised Commercial Crimes Courts operate at the level of the regional courts. These courts hear commercial crime and organised commercial crime matters. The first SCCU was established in 2009. They have grown in number over the years and are now found in all nine regional divisions. See the table below for the spread of SCCCs in each regional division as at 2022. A Regional Magistrate presides in the SCCC. Commercial and organised commercial crimes are investigated by the commercial branches of the South African Police Services. These cases are prosecuted by the Specialised Commercial Crimes Unit of the NPA.

Regional Division

Place where the SCCCs sit to hear matters 

Eastern Cape Regional Division:

East London, Mthatha, Port Elizabeth

Free State Regional Division:

Bloemfontein

Gauteng Regional Division:

Johannesburg, Palm Ridge, Pretoria, Pretoria North

KwaZulu-Natal Regional Division:

Durban, Pietermaritzburg

Limpopo Regional Division:

Giyane, Polokwane Central

Mpumalanga Regional Division:

Mbombela

Northern Cape Regional Division:

Kimberley

North West Regional Division:

Mmabatho

Western Cape Regional Division:

Cape Town at Bellville

Small Claims Courts

Small Claims Courts are established for a magisterial district. The court hears civil matters that arose in the magisterial district in which the Small Claims Court is situated.   

The maximum amount of a claim that may be brought is determined in a Notice in the Government Gazette. In 2019 the amount was determined as R20 000.  Natural persons are allowed to bring claims in the Small Claims Courts whilst businesses, for example companies, close corporations, solely owned businesses and partnerships, are not permitted to do so.  Claims may be brought against a business. A claim may not be brought against the State.   

There is no Magistrate or Judge in the Small Claims Court. The presiding officer is a Commissioner who is usually a practicing advocate or an attorney. Commissioners are appointed by the Minister of Justice and Correctional Services. The Commissioners render their services without any remuneration. Legal representation is not permitted during the proceedings in the court. The proceedings in the court are different from a Magistrates’ Court or the High Court. The Commissioner asks each party questions to determine what transpired in the case.  

Some types of matters that the Small Claims Courts do not hear are divorce, the validity or interpretation of a will, the mental status of a person, defamation, malicious prosecution, wrongful imprisonment and wrongful arrest.

You can contact your nearest Small Claims Court through your nearest Magistrate’s Court.

Website: www.justice.gov.za/scc/scc.htm

Equality Courts

Equality Courts have been established to help someone who believes that they have suffered unfair discrimination, hate speech or harassment. The Equality courts were extended to the Magistrates’ Courts primarily to bring access to justice to the marginalized and vulnerable citizens to assert their rights.

Anyone can take a case to the Equality Court, even if you are not directly involved in what happened. This means a complaint to the court can be made against someone or an organisation you believe have failed to respect the rights of another person.

Proceedings in the High Courts are costly for the majority of people, however in the equality courts, legal representation is not a prerequisite and there are no cost incurred when lodging a complaint, thus making it easy to access.

In terms of the Equality Act the South African Human Rights Commission and Commission on Gender Equality are mandated to assist complainants in taking their matters to the Equality Courts.

Website: www.justice.gov.za/EQCact/eqc_main.html

Maintenance Courts

A maintenance court is not a specialised court per se. A very high number of maintenance applications are heard in the maintenance courts. The court is located at each Magistrate's Court. A Maintenance Officer is in charge of the maintenance matter. The Maintenance Officer assists with application for child maintenance. Maintenance is at the request of the biological or legal guardian of the child. The maintenance sum received by the guardian is for the upkeep of the child. A child’s upkeep is not limited to groceries but encompasses all the necessary needs of the child.

A maintenance defendant is someone who is legally obliged to maintain a child. Paternity is proved through DNA testing. The amount that is necessary for the maintenance of a child differs from one family to the next in line with their living standards. The amount that the defendant can afford is important. The say so of a defendant and claimant about their income and the needs of a child does not suffice. Each party has to provide proof of their earnings and expenses. 

Once a matter is in the maintenance court, if the defendant agrees to pay maintenance and both the defendant and the guardian of the child agree on an amount of the maintenance, then the maintenance officer will request the Magistrate to make the offer an order of court. This removes the need for a drawn out trial and streamlines the court process. If no agreement on the amount is reached or the defendant refuses to make an offer acceptable to the guardian of the child, then the maintenance officer will request the Magistrate to conduct a trial. In such an instance the Magistrate will consider all the financial circumstances and make an order for maintenance.

Legal representation is allowed. The proceedings are recorded but conducted informally due to the nature of maintenance matters. The Magistrate can ask many questions. Our maintenance courts are there to ensure that those who have a duty to maintain minors are held accountable.  

A person may be criminally charged for a deliberate failure to pay maintenance that arose from a court order. The court must first establish that there was a deliberate default. If, for example, the debtor was not earning an income because he/she was unemployed during a particular time when he/she was liable to pay maintenance, then it cannot be said that the failure to pay was deliberate. If a debtor is found guilty of failure to pay maintenance, the person has a criminal conviction. Apart from a criminal prosecution, the debtor’s property may be attached and sold by the Sherriff in civil proceedings. A maintenance debt has the same effect as a civil debt. A maintenance debt is enforceable. A debtor’s pension, annuity, gratuity, emoluments or debt owing to the maintenance debtor may also be attached.

Follow this link for more information on how to claim maintenance.

Sexual Offences Courts

In order to combat sexual violence, especially against women and children, the Department of Justice and Constitutional Development (DOJ&CD) reintroduced the Sexual Offences Courts in the country with the aim to:

As of April 2022, 116 regional courts were upgraded to Sexual Offences Courts. A sexual offences court is defined as a regional court that deals exclusively with cases of sexual offences.

Hybrid sexual offences court is defined as a regional court dedicated for the adjudication of sexual offences cases in any specified area. It is a court that is established to give priority to sexual offences cases, whilst permitted to deal with other cases.

Follow this link for more information on Sexual Offences Courts or to view the list of Sexual Offences Courts.

Children’s Courts

A Children’s Court is a special court which deals with issues affecting children. Every Magistrate’s Court in South Africa is a Children’s Court. The children’s court also takes care of children who are in need of care and protection and makes decisions about children who are abandoned, neglected or abused. Any person/ child may approach the clerk of the children’s court when he/ she believe that a child may be in need of care and protection. The Children’s Court can place a child in safe care or refer the child and/or the parent to services that they may require.

Children’s Court does not deal with criminal cases.

Follow this link for more information on the Children's Courts and Child Justice issues.

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Amended by the Chief Directorate: Policy Development, Branch: Court Services, 08 Aug 2022.