The South African Court System, Alternative Dispute Resolution and Civil
Procedure
This lesson explains how South Africa’s courts are organised, how judges
make and apply law, how disputes may be resolved without a trial, and how
a civil case moves from the first consultation through litigation and
enforcement.
The Separation of Powers
South Africa’s constitutional system is based on the separation of powers.
Government power is divided among three branches:
Diagram showing the legislature, executive and judiciary as the three
branches of government.
The legislature makes laws.
The executive implements and administers laws and government policy.
The judiciary interprets and applies the law when deciding disputes.
The separation is not absolute. The branches interact, but each has a distinct
function. This division prevents all state power from being concentrated in
one institution. The judiciary, in particular, must be able to decide disputes
independently, including disputes involving government.
Judicial authority
Section 165 of the Constitution provides that judicial authority is vested in
the courts. Courts must be independent and subject only to the Constitution
and the law. They 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.
Other organs of state must assist and protect the courts so that they remain
independent, impartial, dignified, accessible and effective.
A court order binds all persons and organs of state to whom it applies. This is
important because a judgment is not merely an opinion: it creates a legally
enforceable result.
> Courts are independent institutions that apply the Constitution and the law
impartially, and their orders bind the persons and state organs to whom
those orders apply.
The Chief Justice is the head of the judiciary and has responsibility for
establishing and monitoring norms and standards for the judicial functions of
all courts.
---
Judicial Decision-Making and Precedent
Adjudication
Adjudication is the process by which a judge resolves a legal dispute. The
judge generally follows this sequence:
Identify the relevant facts.
Formulate the legal question.
Identify and apply the relevant law.
,Reach a conclusion.
Give reasons for the decision.
For example, in a contract dispute, the judge may determine what the
parties agreed, whether one party breached the agreement, and what
remedy should follow. In a delictual claim, the judge may determine whether
the defendant acted wrongfully and negligently and whether that conduct
caused the plaintiff’s loss.
The reasoning that is necessary for the court’s decision is called the ratio
decidendi. It is the legal principle that explains why the court reached its
result.
Other observations made by a judge that are not necessary to decide the
dispute are called obiter dicta. These comments may be persuasive, but they
are not binding in the same way as the ratio decidendi.
The doctrine of stare decisis
The doctrine of stare decisis means that courts generally follow legal
principles established in earlier decisions. This promotes consistency and
predictability. Similar cases should ordinarily receive similar treatment.
Precedent is not followed mechanically in every circumstance. A previous
decision may not control a later case when:
The earlier decision is manifestly incorrect.
The facts of the later case are materially different.
The legal issue is distinguishable.
, The doctrine operates through the hierarchy of courts:
The Constitutional Court is the highest court.
The Constitutional Court is generally bound by its previous judgments unless
a previous judgment is incorrect.
The Supreme Court of Appeal is bound by Constitutional Court decisions and
generally by its own previous decisions.
The High Court is bound by Constitutional Court and Supreme Court of
Appeal decisions, as well as decisions of its own division.
Magistrates’ Courts are bound by decisions of the Constitutional Court,
Supreme Court of Appeal and the relevant High Court.
A lower court cannot disregard a binding decision merely because it prefers a
different result.
Types of judgments
A court may deliver different forms of judgment:
A unanimous judgment occurs when all judges agree on both the result and
the reasoning.
A separate concurring judgment occurs when judges agree on the result but
one judge gives different reasons.
A majority judgment is the judgment supported by most of the judges. The
majority’s final order is binding.
A dissenting or minority judgment is delivered by a judge who disagrees with
the majority. It is not binding, although it may have persuasive value.
Procedure
This lesson explains how South Africa’s courts are organised, how judges
make and apply law, how disputes may be resolved without a trial, and how
a civil case moves from the first consultation through litigation and
enforcement.
The Separation of Powers
South Africa’s constitutional system is based on the separation of powers.
Government power is divided among three branches:
Diagram showing the legislature, executive and judiciary as the three
branches of government.
The legislature makes laws.
The executive implements and administers laws and government policy.
The judiciary interprets and applies the law when deciding disputes.
The separation is not absolute. The branches interact, but each has a distinct
function. This division prevents all state power from being concentrated in
one institution. The judiciary, in particular, must be able to decide disputes
independently, including disputes involving government.
Judicial authority
Section 165 of the Constitution provides that judicial authority is vested in
the courts. Courts must be independent and subject only to the Constitution
and the law. They 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.
Other organs of state must assist and protect the courts so that they remain
independent, impartial, dignified, accessible and effective.
A court order binds all persons and organs of state to whom it applies. This is
important because a judgment is not merely an opinion: it creates a legally
enforceable result.
> Courts are independent institutions that apply the Constitution and the law
impartially, and their orders bind the persons and state organs to whom
those orders apply.
The Chief Justice is the head of the judiciary and has responsibility for
establishing and monitoring norms and standards for the judicial functions of
all courts.
---
Judicial Decision-Making and Precedent
Adjudication
Adjudication is the process by which a judge resolves a legal dispute. The
judge generally follows this sequence:
Identify the relevant facts.
Formulate the legal question.
Identify and apply the relevant law.
,Reach a conclusion.
Give reasons for the decision.
For example, in a contract dispute, the judge may determine what the
parties agreed, whether one party breached the agreement, and what
remedy should follow. In a delictual claim, the judge may determine whether
the defendant acted wrongfully and negligently and whether that conduct
caused the plaintiff’s loss.
The reasoning that is necessary for the court’s decision is called the ratio
decidendi. It is the legal principle that explains why the court reached its
result.
Other observations made by a judge that are not necessary to decide the
dispute are called obiter dicta. These comments may be persuasive, but they
are not binding in the same way as the ratio decidendi.
The doctrine of stare decisis
The doctrine of stare decisis means that courts generally follow legal
principles established in earlier decisions. This promotes consistency and
predictability. Similar cases should ordinarily receive similar treatment.
Precedent is not followed mechanically in every circumstance. A previous
decision may not control a later case when:
The earlier decision is manifestly incorrect.
The facts of the later case are materially different.
The legal issue is distinguishable.
, The doctrine operates through the hierarchy of courts:
The Constitutional Court is the highest court.
The Constitutional Court is generally bound by its previous judgments unless
a previous judgment is incorrect.
The Supreme Court of Appeal is bound by Constitutional Court decisions and
generally by its own previous decisions.
The High Court is bound by Constitutional Court and Supreme Court of
Appeal decisions, as well as decisions of its own division.
Magistrates’ Courts are bound by decisions of the Constitutional Court,
Supreme Court of Appeal and the relevant High Court.
A lower court cannot disregard a binding decision merely because it prefers a
different result.
Types of judgments
A court may deliver different forms of judgment:
A unanimous judgment occurs when all judges agree on both the result and
the reasoning.
A separate concurring judgment occurs when judges agree on the result but
one judge gives different reasons.
A majority judgment is the judgment supported by most of the judges. The
majority’s final order is binding.
A dissenting or minority judgment is delivered by a judge who disagrees with
the majority. It is not binding, although it may have persuasive value.
