Intro to Law : Week 2 Notes
1.OVERVIEW
● The various South African courts and their renaming
● How to cite cases
● The structure and elements of a case:
● Statement of the facts of the case
● The legal question(s) or issue(s) to be resolved in the case
● Statement of the law that must be applied to resolve each question
● Application of the law to the facts
● The conclusion reached by the court and the court's order
& Reading cases and writing case summaries (Writing Centre)
* Reading: Beginner's Guide for Law Students Chapter 13 Pages 319 to 331. Beginner's
Guide for Law Students Chapter 3 Pages 95 to 11I section 3.3.2 & Boots Co Ltd v
Somerset West Municipality 1990 (3) SA 216 (C) (on Ulwazi).
Deeksha Bhana, Minette Nortje & Else Bonthuys Students Guide to the Law of Contract 4
ed (2015) Juta & Co Ltd at 15-16.
2.FUNCTION OF THE COURTS
WITS
UNIVERSITY
● To administer justice: interpret and apply the law
● 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." ● Qn: Does every member of society
have access to courts?
Qn: What should be done to ensure that everyone can have access to justice?
3.CONSTITUTIONAL PROVISIONS & STRUCTURE OF
COURTS
● Constitutional framework - how the court structure is outlined in the Constitution.
● The correct court - which court deals with a particular matter.
Chapter 8 of the Constitution, 1996 "Courts and Administration of Justice" , sets out
the structure of South Africa's court system and defines the role of each court.
● Section 165 says the judicial authority of South Africa is vested in the courts,
which are independent and subject only to the Constitution and the law. &
Independent
& Impartial
● Legitimate
4.SECTION 166 HIERARCHY
Section 166 identifies the courts as: ● the
Constitutional Court;
● s 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.)
● A hierarchy implies that the powers run from the top downwards. Informs
hierarchy of precedent.
● 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.
5. SUPERIOR/UPPER COURTS
*THE CONSTITUTIONAL COURT (CC)
● THE SUPREME COURT OF APPEAL (SCA)
● THE HIGH COURT OF SOUTH AFRICA
The correct court:
& 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).
Qn: What happens if the wrong court is used?
Qn: What to consider when accepting an instruction from a client?
6. CLOSER LOOK AT THE COURTS
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 officerS) - the judicial officer who decides matters
7. CONSTITUTIONAL COURT
This is the highest court in South Africa - Apex Court
● In all matters [|7th Amendment to the Constitution]
● The seat of this court is in Johannesburg (Constitutional Hill)
● Il Judges seated (at least 8 must hear the matter)
● Its decisions cannot be changed by any other court
Section 167 of the Constitution: (1) The Constitutional Court consists of the Chief Justice of
South Africa, the Deputy Chief Justice and nine other judges.
1. A matter before the Constitutional Court must be heard by at least eight judges.
2. 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.
8. SUPREME COURT OF APPEAL
● Based in Bloemfontein
● The court is not a court of first instance and purely a court of appeal
*Plaintiff must first approach another court for a decision & Judgment is binding on lower
courts
Origin
&The Supreme Court Act 59 of 1959 established the SCA and it now also operates under
section 168 read with schedule 6 of the Constitution.
9. HIGH COURT OF SOUTH AFRICA
● Court of first instance and appeal
● Can adjudicate on both criminal and civil mattersOrigin
* The HC was established by the Supreme Court Act 59 of 1959 now it operates in terms of
section 169 of the Constitution.
Presiding officer (PO)
● Each division of the HC consists of a judge president, deputy judge president, and
a number of other judges.
● HC judges are appointed by the President of SA after consultation with the JSC.
● A matter is usually decided by a single judge and appeal matters are heard by
three judges (a full bench).
● Other officers in the courts are:
& Registrar of the Court, Master of the court, the sheriff of the court, State
attorney.
10. HIGH OF SOUTH AFRICA - MAIN SEATS
● I.Eastern Cape Division - Grahamstown;
● 2. Free State Division - Bloemfontein;
● 3. Gauteng Division - Pretoria;
● 4.KwaZulu-Natal Division - Pietermaritzburg;
● 5.Limpopo Division - Polokwane;
● 6.Mpumalanga Division - Mbombela (Nelspruit) from 13 May 2019;
● 7.Northern Cape Division - Kimberley;● 8.North West Division - Mahikeng; ● 9.
Western Cape Division - Cape Town.
11. MAIN DIVISIONS AND LOCAL SEATS (S 50 SUPERIOR
COURTS ACT)
● I.Eastern Cape Division - Grahamstown (main), Bhisho, Mthatha, Port Elizabeth;
● 2. Free State Division - Bloemfontein (only main);
● 3. Gauteng Division: a. Gauteng High Court - Pretoria (main) ; b.
Gauteng Local High Court - Johannesburg:
$ 4.KwaZulu-Natal Division: Pietermaritzburg (main), Durban;
5.Limpopo Division - Polokwane (main), Thohoyandou, Lephalale;
$ 6.Mpumalanga Division - Nelspruit (only main);
$ 7.Northern Cape Division - Kimberley (only main); *8.North West
Division - Mahikeng (only main);
$ 9.Western Cape Division - Cape Town (only main).
