South Africa is a constitutional democracy with a court system expressly recognised under the Constitution of 1996. The court system is governed by section 166 of the Constitution and all courts are required to develop and interpret the law (statutory and common law) in accordance with the Constitution. The court system is a complex one and many find it difficult to understand. In this article, we describe the different courts, their roles, authority and powers, and their officers.
Use this infographic for a summary of the South African court system.
The Constitutional Court
The Constitutional Court is the highest court in South Africa, often referred to as the ‘apex court’ and is the final decision-maker or arbiter on all constitutional matters. Such constitutional matters are:
All matters relating to the Bill of Rights.
Deciding disputes between organs of state in the national or provincial spheres of government including their constitutional status, powers or functions or authority.
Deciding the constitutionality of any Parliamentary or Provincial Bill.
Deciding on any amendment to the Constitution.
Deciding whether Parliament or the President has failed to comply with a constitutional obligation.
The Constitutional Court is based in Johannesburg and is made up of 11 judges appointed by the President, following an interview process by the Judicial Services Commission. The Court is headed by the Chief Justice who in terms of the Superior Courts Act is the senior most judge in South Africa and has the ultimate authority over all courts in the country. The quorum (ie the number of judges needed for the court to hear a matter) is at least eight of the 11 judges but in practice, all 11 judges sit en banc (ie sit as the entire court) on matters brought before it.
As a general rule, the Constitutional Court acts as a court of appeal and does not hear matters as a court of first instance/hearing nor does it hear witnesses or evidence. The only exception to this is when the Court grants an applicant direct access based on exceptional grounds to bring a matter directly to it without going through the other courts. Typically, all matters must make their way through the court system, ie High Court, Supreme Court of Appeal, and then (in the case of constitutional matters) to the Constitutional Court. The reason the Constitutional Court requires hearings before the other lower courts is so that it will have the advantage of having the judgements and reasoning of those other judges, which will then help the judges of the Constitutional Court to make a final determination.
Decisions of the Constitutional Court are determined by the majority decision. The Constitutional Court exercises its jurisdiction over the entire Republic.
The Supreme Court of Appeal
The Supreme Court of Appeal (the SCA, and previously known as the Appellate Division), and apart from the Constitutional Court, is the highest court in the country with jurisdiction to finally decide on all matters (except for certain labour and competition law matters). It is an appeal court and hears matters that are referred to it by the High Courts – direct access to the SCA is not possible.
The SCA makes the final determination on all civil and criminal matters referred to it except for certain labour and competition matters. The SCA also has the power to hear constitutional matters including the constitutional validity of any Act of Parliament or of a Province, conduct of the President, and Bill of Rights matters. However, any order of constitutional invalidity it makes must be referred to the Constitutional Court for final determination.
The SCA consists of a number of appeal judges (currently 23) but all matters are heard by either three or five judges with the majority decision prevailing. The SCA is headed by the President of the SCA and is based in Bloemfontein, which is formally regarded as the judicial capital of the Republic.
Unless the judgement of the SCA has a constitutional aspect, the Constitutional Court will not overrule a SCA decision, and that decision will be the final.
The Supreme Court of Appeal exercises its jurisdiction over the entire Republic.
The Labour Appeal Court (LAC) has similar status as the SCA but only in respect of labour matters. Decisions of the LAC may be appealed to the Constitutional Court provided there is a constitutional basis for such appeal.
The High Courts
The High Courts (previously known as Supreme Courts) hear appeals from the magistrates' courts of the area where the High Courts have geographical jurisdiction. The Court also has the authority to hear matters as a court of first instance/hearing where the magistrates’ courts (and other lower courts) have no jurisdiction to hear the matters, and such matters are typically more contentious or higher-value civil disputes as well as serious criminal matters, along with disputes involving constitutional matters. A High Court can make a ruling invalidating an Act of Parliament or the Province but such ruling will have to be confirmed by the Constitutional Court.
Each Province has its own High Court but may have different 'branches' depending on the size of the jurisdiction and also a 'travelling' circuit court to hear matters in more remote areas from time to time.
A judge is assigned to hear cases by the Judge President of the High Court. An appeal against the judge’s decision can be referred on appeal or review to the Supreme Court of Appeal, or in some cases, to a three-judge panel of the same High Court (called a full bench), which would not include the judge who made the original ruling.
High Courts and the Supreme Court of Appeal have historically been regarded as having inherent or original jurisdiction to hear matters derived from the common law, compared to lower courts (namely, the magistrates’ courts) which are ‘creatures’ of statute, ie magistrates’ courts get their authority and jurisdiction from what is given to them under the Magistrates’ Court Act 32 of 1944.
The High Court has concurrent jurisdiction with the lower courts. This means all the matters that a magistrates’ court or other lower court can hear so too can the High Court. In practice though the lower courts are left to adjudicate on matters falling within their jurisdiction and authority as access to the High Court can be expensive and prolonged, not to mention that it would clog up the High Court roll of cases if it were to hear matters that could first be heard by a lower court.
Apart from the High Court there are specialised courts that have equivalent status to them. Examples of these courts are The Competition Appeal Court (which only hears appeals from the Competition Tribunal), the Labour Court (appeals are heard by the Labour Appeal Court), the Land Claims Court, the Electoral Court, and the Tax Court.
The Magistrates' Court
The lower courts are made up of a number of courts, the most well-known is the Magistrates’ Court. The Magistrates’ Courts can be broken up into two categories – district courts covering a specific magisterial district, and regional courts covering a number of districts.
The key difference between the two is that regional courts have greater powers of sentencing and authority on criminal matters whereas the district courts have lower sentencing powers. District courts may also hear certain defined civil matters but not divorces and disputes involving wills. Regional courts, as of 2020, can adjudicate on both civil and serious criminal matters (such as murder, rape, armed robbery, and treason) – prior to 2020, regional courts only dealt with serious criminal cases and not civil matters. As of 2022, district courts can hear civil matters up to the value of R200 000, can impose fines up to R120 000, and prison sentences up to three years. Regional courts have authority in civil matters up to R400 000, can impose fines up to R600 000, and prison sentences up to 15 years.
There are specialised Magistrates’ Courts focused on child justice (criminal offences committed by minors), maintenance (for spousal and child support), and sexual offences.
An Equality Court is a special Magistrates’ Court created specifically to hear cases of unfair discrimination, hate speech, or harassment based on race, gender, pregnancy, marital status, ethnic or social origin, colour of skin, sexual orientation, age, disability, religion (including conscience and belief), culture, language, birth, nationality, HIV/AIDS status or perceived status, economic or social status, family responsibility and status.
There are also Small Claims Courts, headed by a Commissioner, for civil cases up to a defined threshold (currently R20 000) where no legal representation is permitted at the court, and is intended for expeditious resolution of small disputes involving individuals.
Another type of lower court is the Chief’s and Headmen’s Court (or for short: Chief’s Courts), which determine contentious issues under African customary law, and is heard by an authorised Headman or a deputy. An example would be disputes in terms of customary marriage or lobolo. A person with a claim can elect to bring the matter before the appropriate Magistrates’ Court or the Chief’s Court.
Appeals from the lower courts will be referred to the relevant High Court with geographical jurisdiction.
Lower courts cannot decide on any constitutional matters as this falls within the exclusive jurisdiction of the higher courts.
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To view a short-form infographic on the SA Court System that acts as a quick reference guide, click on the image below.
The information provided is for information purposes and does not constitute legal advice. Contact a lawyer should you require assistance. Legal Dynamix is not a law firm and does not provide legal advice on the subject matter contained herein.
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