Topic 11 - Jurisdiction, Procedure & Evidence PDF

TOPIC 11 JURISDICTION, PROCEDURE & 1 EVIDENCE OBJECTIVES  After studying this section, you should be able to:  Distinguish between civil and criminal cases and the types of procedures used to resolve each legal dispute.  Identify which...

TOPIC 11 JURISDICTION, PROCEDURE & 1 EVIDENCE OBJECTIVES  After studying this section, you should be able to:  Distinguish between civil and criminal cases and the types of procedures used to resolve each legal dispute.  Identify which court has jurisdiction over particular legal issues in South Africa.  Explain the procedures applicable to criminal and civil proceedings.  Distinguish between an appeal and a review.  Explain the types of evidence admissible in court.  Explain the types of evidence inadmissible in court.  Explain the principles of audi alteram partem and nemo iudex in sua causa. 2  TYPE OF CASE AND AMOUNT OF COMPENSATION OR PUNISHMENT Distinction between criminal, civil and constitutional matters Criminal - court’s jurisdiction determined by:  kind of offence and  possible sentence Civil - court’s jurisdiction determined by: - jurisdiction determined by:  amount claimed  the nature of the relief sought Constitutional matters 2. THE DISTINCTION BETWEEN CIVIL AND CRIMINAL CASES (foundational Before we consider )the jurisdiction of the courts, it is considerations essential that you have an understanding of the important distinction between civil cases and criminal cases. Criminal law Civil law What is? Describes what constitutes Describes what must happen a when crime and how such there is a dispute between crimes should be individuals and how the punished dispute is to be resolved Purpose? To protect society against Not to punish, but to resolve harmful conduct the dispute, grant a remedy for the aggrieved party State involvement? The state is responsible for The state is not necessarily prosecuting criminals involved unless it is a party to the civil case 5 3. COURT STRUCTURE AND JURISDICTION (FOUNDATIONAL CONSIDERATIONS)  Section 166: hierarchical court structure (superior and lower courts).  Sections 167-170 (as amended by the Constitution Seventeenth Amendment Act).  One of the main differences between the various courts is the extent of their jurisdiction. 6 COURT HIERARCHY CON COURT SCA HIGH COURTS LOWER COURTS  3. COURT STRUCTURE AND JURISDICTION (FOUNDATIONAL CONSIDERATIONS)  What is jurisdiction? It means the competence of a particular court to hear a specific case. When there is a question about jurisdiction, wemust ask:  Is it an appeal or a review case?  Can the court function as a court of first instance? 7  We also ask if the court has geographical 3. COURT STRUCTURE AND JURISDICTION (FOUNDATIONAL CONSIDERATIONS):APPEAL AND REVIEW In an appeal, the higher court considers whether the lower court made the correct decision on the facts and the law. An appeal relates to the merits or substance of the case. An appeal court only considers the record of proceedings in the original trial court (the court a quo) when making its finding. In other words, it is not a new trial. 8 3. COURT STRUCTURE AND JURISDICTION (FOUNDATIONAL CONSIDERATIONS): APPEAL AND REVIEW In a review, the dissatisfied party claims that there have been irregularities in the procedures adopted by the lower court when it heard the matter or made its decision. For example bias. Some cases go on automatic review. The review court may go beyond the record of the original court as any irregularities may not be apparent from the record. 9 3. COURT STRUCTURE AND JURISDICTION (FOUNDATIONAL CONSIDERATIONS) COURT OF FIRST INSTANCE & GEOGRAPHICAL JURISDICTION  We ask whether a court can hear a specific case for the first time, in other words, can the case start there? o Each court has jurisdiction within a specific geographical area in the country. o There must be some connecting factor(s) between the persons before the court and the court’s geographical area of jurisdiction. 1 0 4. COURT STRUCTURE AND JURISDICTION (CONSTITUTIONAL COURT)  Composition: Chief Justice, Deputy Chief Justice and nine other judges –’justices’  Geographical jurisdiction: seat in Johannesburg/Braamfontein and has jurisdiction within the whole geographical area of South Africa.  Types of cases:  Position before the Constitution 17th Amendment Act 1  Position after the Constitution 17th 1 4. COURT STRUCTURE AND JURISDICTION (CONSTITUTIONAL COURT) Section 167 (3) The Constitutional Court-  (a) is the highest court of the Republic; and  (b)constitutional may decide- matters; and   (i) any other matter, if the Constitutional Court (ii) grants leave to appealon the grounds that the matter raises an arguable point of law of general public importance which ought to be  considered (c) makes bydecision the final that Court; anda matter is whether within its jurisdiction  4. COURT STRUCTURE AND JURISDICTION (CONSTITUTIONAL COURT)  S 167(4) Only the Constitutional Court may-  (a) decide 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) 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  (f) certify a provincial constitution in terms of section 144.  (5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force. 4. COURT STRUCTURE AND JURISDICTION (CONSTITUTIONAL COURT)  Court of appeal: appeals against constitutional matters (a matter raising a constitutional consideration) decided in the High Courts or the Supreme Court of Appeal.  Court of first instance: functions as a court of first instance with regards to its exclusive jurisdiction in terms of section 167(4) of the Constitution. 1 4  5. COURT STRUCTURE AND JURISDICTION (SUPREME COURT OF APPEAL)  Composition: President, Deputy President and judges of appeal.  Geographical jurisdiction: seat in Bloemfontein and has jurisdiction within the whole geographical area of South Africa. 1 5 5. COURT STRUCTURE AND JURISDICTION (SUPREME COURT OF APPEAL)  Types of cases - specialist court of appeals:  Position before the 17th Amendment Act?  Position after the 17th Amendment Act?  Only functions as a court of appeal and not as a court of first instance (hears appeals from high courts (single bench - full bench - SCA) but not appeals directly from a magistrates’ courts).  It can decide all criminal and civil cases on appeal.  It can decide appeals on constitutional matters except matters that fall within the exclusive jurisdiction of the Constitutional Court.  It can declare an Act of Parliament, a Provincial Act or conduct of the President of South Africa unconstitutional; but any such ord er has to be confirmed by the Constitutional Court. 17 6. COURT STRUCTURE AND JURISDICTION (HIGH COURTS) Composition and Geographical Jurisdiction Provincial and Local divisions  Relationship between the provincial and local divisions of the high court.  The provincial division (or sometimes called a ‘parent division’) with its local division have concurrent or co- ordinate jurisdiction- these courts have the same authority to hear and adjudicate matter brought before 1 them (however, provincial divisions have larger 8 geographical jurisdiction in a province than a local MAP OF PROVINCIAL AND LOCAL DIVISIONS 6. COURT STRUCTURE AND JURISDICTION (HIGH COURTS)  Inherent jurisdiction: High Courts do not derive their powers solely from statute and their jurisdiction may be excluded by legislation  Types of cases: a high court has appeal jurisdiction and it can function as a court of first instance.  Court of appeal: an appeal from the decision of a single judge in a High Court will normally lie to a full bench of a High Court.  Furthermore, an appeal lies from a magistrate's court to a 2 2 High Court.  6. COURT STRUCTURE AND JURISDICTION (HIGH COURTS) High courts can hear criminal and civil cases o Criminal cases: any offence and impose any sentence (only High Courts can hear the offence of treason or impose sentences which exceeds 15 years imprisonment or a R600 000 fine). o Certain exceptions apply for lower courts in relation to drug offences. o Civil cases: any matter and grant any relief (only High Courts can hear matters relating to status (presumption of death, wills (previously only high courts could hear divorce matters). 20 o Only high courts can hear cases where specific performance 6. COURT STRUCTURE AND JURISDICTION (HIGH COURTS) o Connecting factors: o a provincial or local division has jurisdiction over all persons residing in or being in its area of jurisdiction. o in relation to all causes arising and all offences committed within, its area of jurisdiction.  Civilcases: the Plaintiff/Applicant will initiate the case where the defendant works or resides or where cause of action arose),  criminal cases State prosecutor will prosecute where the crime allegedly took place). 21 Sometimes dominant party (party that initiates the case) has a 6. COURT STRUCTURE AND JURISDICTION (HIGH COURTS) o Constitutional matters: In terms of s 169 of the Constitution, a High Court may decide any constitutional matter. o Except a matter that only the Constitutional Court may decide; or a matter that is assigned by an Act of Parliament to another court of a status similar to a High Court. 22 7. COURT STRUCTURE AND JURISDICTION (OTHER SUPERIOR COURTS)  Status equivalent to Supreme Court of appeal:  Labour Appeal Court  Status equivalent to a High Court:  Labour Court  Land Claims Court  Special Income Tax Courts  Special Consumer Court  Electoral Court  Equality Courts 23 8. COURT STRUCTURE AND JURISDICTION (MAGISTRATES’ COURTS)  All magistrates’ courts are ‘creatures of statute’ and exist at two levels: district and regional courts.  These courts do not have concurrent jurisdiction (as this is specifically regulated by legislation). 24 8. COURT STRUCTURE AND JURISDICTION (MAGISTRATES’ COURTS)  Types of cases they hear: primarily functions as a court of first instance and does not generally have appeal jurisdiction (can only hear appeals against criminal decisions of chiefs or headmen under the Black Administration Act 38 of 1927).  Court of first instance: constitutional cases (limited jurisdiction)  Section 170 of the final Constitution provides that a Magistrate’s Court may decide any matter determined by an Act of Parliament, but does not possess the power to enquire into or rule on the constitutionality of any legislation or any conduct of the President. 25  CIVIL CASES THE RMC AND DMC DON’T HAVE JURISDICTION TO HEAR (MATTER THEY CANNOT Civil Cases HEAR) Regional court District court Type Cases involving Validity/meaning of validity/meaning of wills wills Declaration of insanity Declaration of insanity Specific performance Specific performance (w/o alternative claim (w/o alternative claim) for damages) Indicates the max Claims exceeding R400 Claims exceeding R200 amount of relief the 000 000 court can order in civil case. 26 Divorce matters  CIVIL CASES RMC AND DMC DO HAVE JURISDICTION TO HEAR (MATTERS THAT CAN BE HEARD) Civil Cases Regional District Type All Cases where claim All Cases where the is between R200 000 claim is less than –R400 000 R200 000 Divorce cases 27 CRIMINAL CASES RMC AND DMC DO NOT HAVE JURISDICTION TO HEAR (MATTER THEY CANNOT HEAR) Criminal Cases Regional District A: Cases involving crimes Crimes committed committed outside its outside its area of area of jurisdiction (this jurisdiction (this rule is rule is not restrictively not restrictively applied). applied). Treason case Treason, murder, rape cases B: sentences they cannot Fine exceeding R 600 000 Fine exceeding R120 000 impose (general rule) and 15 yrs imprisonment and 3 yrs imprisonment. (exceptions apply)see below 28  CRIMINAL CASES RMC AND DMC DO HAVE JURISDICTION TO HEAR (MATTERS THAT CAN BE HEARD) Regional District Type: All other crimes except All other crimes except treason treason, murder or rape A: Appeals (exception to Appeals from Chiefs Appeals from Chiefs the general rule) and headmen and headmen B: Sentences they can Fine up to R600 000 Fine up to R 120 000 impose and 15 yrs and 3 yrs imprisonment imprisonment C: Sentences: can 20 years for 2nd offence Up to 25 yrs imprison impose (exceptions) and up to 25 years for for dealing in certain 3rd offence for certain drugs Increased crimes including drug sentencing offences. (Criminal law jurisdiction in terms 29 Amendment Act 105 of of Acts 1997. 9. COURT STRUCTURE AND JURISDICTION (SMALL CLAIMS COURT) Judicial purpose and function: this court derives it power from The Small Claims Courts Act 61 of 1984 which provides for the establishment of a number of courts presided over by officers called commissioners. Furthermore, each small claims court exercises jurisdiction over an area for which it has been established. 30 9. COURT STRUCTURE AND JURISDICTION (SMALL CLAIMS COURT)  Procedure: the procedures are much more informal and inquisitorial.  Limitations in the SCC  No legal representation allowed  NO juristic persons can use this forum  Types of cases:  Can function as a court of first instances in civil cases where a claim does not exceed R20 000 *from 1st April 2019. your textbook is, therefore, outdated, and this new claim amount must be studied and applied.  Has no appeal jurisdiction and its orders are final (decisions can only be taken on review) 31  Cannot hear divorce cases, cases related to wills or defamation.