CIVIL PROCEDURE
271
NOTES
,SUPERIOR COURTS: Appeal:
1. Constitutional court: Johannesburg CRIMINAL COURTS: • May correct incorrect sentences.
Composition: • Inherited power to protect and regulate its own
• Chief justice (CJ) – Mogoeng Mogoeng procedures.
• Deputy Chief justice (DCJ) - Raymond Zondo Jurisdiction: Competence of the
• Removal of persons who are interrupting procedure.
• 9 judges (J) court to make binding judgments
• Matter must be heard before at least 8 judges. and to enforce these judgments. 4. High court: Grahamstown
Courts are independent and Composition:
Jurisdiction: • Judge president
subject to the Constitution and
• Final jurisdiction of all matters. • 1 or 2 Deputy judge presidents
the law which they need to apply
• Decide all constitutional matters. • Single judge presides in a matter unless a full bench of
impartially and without fear,
• Any factual or legal matters when granted leave to appeal. three judges is appointed.
favour or prejudice.
• Makes final decisions on whether a matter in within • Appeal is heard by either 2/3 judges.
jurisdiction.
• Final decisions on Act of Parliament, Provincial Act and Jurisdiction:
conduct of the president. • Constitutionality of any legislation or any conduct of the
• Confirms any order of invalidity make by the SCA or HC. President.
• Decides if a applicant can bring a matter regarding CC • May develop the Common law.
matters directly to the CC.
Appeal:
Constitutional matter: includes any issue involving the • Appeal and review jurisdiction in respect of criminal
interpretation, protection or enforcement of the Constitution. proceeding emanating from lower courts.
Appeal: LOWER COURTS:
• Only when appeal with leave is granted. Magistrates’ court:
Composition:
2. Supreme court of appeal: Bloemfontein • Magistrates
Composition: • Organisational work
• President (P) – Lex Mpathi • Sheriff
• Deputy President (DP) – Mandisa Maya • Taxing master
• Judges of appeal (JA) • Legal practitioners
• 5 judges for all criminal matters
Jurisdiction:
Jurisdiction: • Can’t look into the constitutionality of any legislation or
• Any matter on appeal. the conduct of the President.
• Highest court of appeal except in CC matters. • Can grant or deny leave to appeal to a HC.
• Constitutionality of an Act of Parliament, Provincial Act • Can’t hear any appeal cases.
or conduct of the President, but must be confirmed by
CC.
• Can develop the Common Law – interest of justice
,JURISDICTION OF CRIMINAL COURTS: SUMMARY TRIAL:
Jurisdiction in respect of offences, territory, punishment and validity of S 90 of Magistrates’ Court Act: District court and Regional court have jurisdiction to hear
the provisions of any act. trials of persons who are charged with an offence committed within the district or within the
regional divisions. The provision has also been extended by provisions of s 90. – “4km rule”
1. Offences:
High Court: PREPARATORY EXAMINATIONS AND PRELIMINARY ENQUIRIES:
• Original jurisdiction in all matters. Section 125 of Magistrates’ Court Act:
District Court: JURISDICTION IN RESPECT OF OFFENCES COMMITTED OUTSIDE SA.
• All crimes except treason, murder, rape and compelled rape. Only has jurisdiction on offences inside SA – Makhutla & Kaunda.
Regional Court: Exceptions:
• All crimes except treason. • High treason
• Crimes of genocide, crimes against humanity and war crime – has jurisdiction in
2. Offences committed on SA territory: terms of s 4(3) of the Implementation of the Rome Statue of the International
High Court: Criminal Court Act.
• Original jurisdiction in all matters within their respective areas. • Trafficking of persons – s 12 extraterritorial jurisdiction
• Can put into effect a suspended sentence imposed by another • Charge of theft committed in foreign state – SA courts will have jurisdiction.
division or lower court. • Offences committed on ships (on SA ship, open sea, other ships by South Africans)
• Legislation may dictate jurisdiction – if given to lower court, HC • Offences committed on aircraft (on SA aircraft, outside SA)
can still hear it. • Offences committed on territory which is subsequently annexed by the Republic.
• National director of public prosecutions can move jurisdiction to a • Offences committed by SA citizens in Antarctica.
division even if crime took place in another • Occasionally SA courts have jurisdiction in respect of offences committed beyond SA
Local divisions of the HC: borders on account of miscellaneous statutory and other provisions securing
• Provincial divisions have concurrent jurisdiction jurisdiction of our courts.
• If fall under local division – can be tried at local or provincial Court
Extraterritorial jurisdiction: pg43
District & Regional Court: • Torture
Summary trial: Accused is charged in the MC and MC decides if he is guilty • Corrupt activities
or not. • Electronic communication
Preparatory examination: There is a hearing in which the accused is not • Correctional services
tried, the magistrate does not judge whether he is guilty or not, but only • Constitutional democracy
hears the evidence which is then sent to the DPP who decides to institute • Protection of information
a prosecution or not and in which court.
, PUBLIC PROSECUTION: WITHDRAWAL & STOPPING OF PROSECUTION:
Prosecution = dominus litis (master of the case)
PROSECUTION OF A CRIME: Withdrawal: S 6(a) of CPA
• Prosecution can do what is legally permissible to set • Prosecutor may withdraw charge before accused has
criminal proceedings in motion. (charges, date, venue) The mission of the National Prosecuting pleaded.
• Fairness & residual control Authority of South Africa (NPA), guided • Accused not entitled to verdict on acquittal.
by the Constitution, is to ensure justice • He may prosecute again on same charges.
Discretion to prosecute: for the victims of crime by prosecuting • Can withdraw without consent of DPP.
Prosecution has a duty to prosecute if there is a prima facie without fear, favour and prejudice and, • DPP may charge accused again if not satisfied.
case and if there is no compelling reason to refuse. by working with their partners and the
public, to solve and prevent crime. Stopping of prosecution:
Prosecutor does not have to ascertain whether or not there is • DPP may stop prosecution any time before accused
a possible defence for the charges but whether there is has pleaded, but before conviction.
reasonable & probable cause for prosecution and whether it is • Accused is entitled to acquittal.
in the interest of justice. • Public prosecutor may not stop prosecution without
• The nature and seriousness of the crime. consent.
• The manner in which the crime was committed.
• The motivation of the act. PRESCRIPTION OF A CRIME: S 18 OF CPA
• Relationship between the accused and the victim. General rule: 20 years from date of the offence was
• Effect on public order and their morals. committed.
• Economic Impact. Common-Law crimes which have no prescription:
• Likely outcome in the event of a conviction. • Murder
• Treason
There are some exceptions where there was a prima facie case • Aggravating circumstances were present
and the prosecution decided not to prosecute, these • Kidnapping
exceptions are as follows: • Child-stealing
• Triviality (de minimus non curat lex) • War crimes
• Age (advance or young) • Rape
• Plea agreement between the state and the defence. • Crimes against humanity
• Antiquated nature of the offence. • Genocide
• Tragic personal circumstances of the accused. • Compelled rape
The relevance of these factors and the weight attached to each • Using a child or person who is mentally disabled for
of them will depend on the circumstances of the case. pornographic purposes.
2 fundamental principles: LEGAL ETHICS:
1. The police & the prosecuting authority should not knowingly • Seek to promote a fair criminal justice system.
allow a pattern of contravention of a certain statute to develop
then unexpectedly arrest & prosecute. No private practitioner who has no authority to prosecute
2. Discretionary prosecution is no licence for discriminatory may assist the State prosecution by cross-examining the
prosecution. defence witness on behalf of the prosecution or address the
• S 9 – everyone is equal. court.
271
NOTES
,SUPERIOR COURTS: Appeal:
1. Constitutional court: Johannesburg CRIMINAL COURTS: • May correct incorrect sentences.
Composition: • Inherited power to protect and regulate its own
• Chief justice (CJ) – Mogoeng Mogoeng procedures.
• Deputy Chief justice (DCJ) - Raymond Zondo Jurisdiction: Competence of the
• Removal of persons who are interrupting procedure.
• 9 judges (J) court to make binding judgments
• Matter must be heard before at least 8 judges. and to enforce these judgments. 4. High court: Grahamstown
Courts are independent and Composition:
Jurisdiction: • Judge president
subject to the Constitution and
• Final jurisdiction of all matters. • 1 or 2 Deputy judge presidents
the law which they need to apply
• Decide all constitutional matters. • Single judge presides in a matter unless a full bench of
impartially and without fear,
• Any factual or legal matters when granted leave to appeal. three judges is appointed.
favour or prejudice.
• Makes final decisions on whether a matter in within • Appeal is heard by either 2/3 judges.
jurisdiction.
• Final decisions on Act of Parliament, Provincial Act and Jurisdiction:
conduct of the president. • Constitutionality of any legislation or any conduct of the
• Confirms any order of invalidity make by the SCA or HC. President.
• Decides if a applicant can bring a matter regarding CC • May develop the Common law.
matters directly to the CC.
Appeal:
Constitutional matter: includes any issue involving the • Appeal and review jurisdiction in respect of criminal
interpretation, protection or enforcement of the Constitution. proceeding emanating from lower courts.
Appeal: LOWER COURTS:
• Only when appeal with leave is granted. Magistrates’ court:
Composition:
2. Supreme court of appeal: Bloemfontein • Magistrates
Composition: • Organisational work
• President (P) – Lex Mpathi • Sheriff
• Deputy President (DP) – Mandisa Maya • Taxing master
• Judges of appeal (JA) • Legal practitioners
• 5 judges for all criminal matters
Jurisdiction:
Jurisdiction: • Can’t look into the constitutionality of any legislation or
• Any matter on appeal. the conduct of the President.
• Highest court of appeal except in CC matters. • Can grant or deny leave to appeal to a HC.
• Constitutionality of an Act of Parliament, Provincial Act • Can’t hear any appeal cases.
or conduct of the President, but must be confirmed by
CC.
• Can develop the Common Law – interest of justice
,JURISDICTION OF CRIMINAL COURTS: SUMMARY TRIAL:
Jurisdiction in respect of offences, territory, punishment and validity of S 90 of Magistrates’ Court Act: District court and Regional court have jurisdiction to hear
the provisions of any act. trials of persons who are charged with an offence committed within the district or within the
regional divisions. The provision has also been extended by provisions of s 90. – “4km rule”
1. Offences:
High Court: PREPARATORY EXAMINATIONS AND PRELIMINARY ENQUIRIES:
• Original jurisdiction in all matters. Section 125 of Magistrates’ Court Act:
District Court: JURISDICTION IN RESPECT OF OFFENCES COMMITTED OUTSIDE SA.
• All crimes except treason, murder, rape and compelled rape. Only has jurisdiction on offences inside SA – Makhutla & Kaunda.
Regional Court: Exceptions:
• All crimes except treason. • High treason
• Crimes of genocide, crimes against humanity and war crime – has jurisdiction in
2. Offences committed on SA territory: terms of s 4(3) of the Implementation of the Rome Statue of the International
High Court: Criminal Court Act.
• Original jurisdiction in all matters within their respective areas. • Trafficking of persons – s 12 extraterritorial jurisdiction
• Can put into effect a suspended sentence imposed by another • Charge of theft committed in foreign state – SA courts will have jurisdiction.
division or lower court. • Offences committed on ships (on SA ship, open sea, other ships by South Africans)
• Legislation may dictate jurisdiction – if given to lower court, HC • Offences committed on aircraft (on SA aircraft, outside SA)
can still hear it. • Offences committed on territory which is subsequently annexed by the Republic.
• National director of public prosecutions can move jurisdiction to a • Offences committed by SA citizens in Antarctica.
division even if crime took place in another • Occasionally SA courts have jurisdiction in respect of offences committed beyond SA
Local divisions of the HC: borders on account of miscellaneous statutory and other provisions securing
• Provincial divisions have concurrent jurisdiction jurisdiction of our courts.
• If fall under local division – can be tried at local or provincial Court
Extraterritorial jurisdiction: pg43
District & Regional Court: • Torture
Summary trial: Accused is charged in the MC and MC decides if he is guilty • Corrupt activities
or not. • Electronic communication
Preparatory examination: There is a hearing in which the accused is not • Correctional services
tried, the magistrate does not judge whether he is guilty or not, but only • Constitutional democracy
hears the evidence which is then sent to the DPP who decides to institute • Protection of information
a prosecution or not and in which court.
, PUBLIC PROSECUTION: WITHDRAWAL & STOPPING OF PROSECUTION:
Prosecution = dominus litis (master of the case)
PROSECUTION OF A CRIME: Withdrawal: S 6(a) of CPA
• Prosecution can do what is legally permissible to set • Prosecutor may withdraw charge before accused has
criminal proceedings in motion. (charges, date, venue) The mission of the National Prosecuting pleaded.
• Fairness & residual control Authority of South Africa (NPA), guided • Accused not entitled to verdict on acquittal.
by the Constitution, is to ensure justice • He may prosecute again on same charges.
Discretion to prosecute: for the victims of crime by prosecuting • Can withdraw without consent of DPP.
Prosecution has a duty to prosecute if there is a prima facie without fear, favour and prejudice and, • DPP may charge accused again if not satisfied.
case and if there is no compelling reason to refuse. by working with their partners and the
public, to solve and prevent crime. Stopping of prosecution:
Prosecutor does not have to ascertain whether or not there is • DPP may stop prosecution any time before accused
a possible defence for the charges but whether there is has pleaded, but before conviction.
reasonable & probable cause for prosecution and whether it is • Accused is entitled to acquittal.
in the interest of justice. • Public prosecutor may not stop prosecution without
• The nature and seriousness of the crime. consent.
• The manner in which the crime was committed.
• The motivation of the act. PRESCRIPTION OF A CRIME: S 18 OF CPA
• Relationship between the accused and the victim. General rule: 20 years from date of the offence was
• Effect on public order and their morals. committed.
• Economic Impact. Common-Law crimes which have no prescription:
• Likely outcome in the event of a conviction. • Murder
• Treason
There are some exceptions where there was a prima facie case • Aggravating circumstances were present
and the prosecution decided not to prosecute, these • Kidnapping
exceptions are as follows: • Child-stealing
• Triviality (de minimus non curat lex) • War crimes
• Age (advance or young) • Rape
• Plea agreement between the state and the defence. • Crimes against humanity
• Antiquated nature of the offence. • Genocide
• Tragic personal circumstances of the accused. • Compelled rape
The relevance of these factors and the weight attached to each • Using a child or person who is mentally disabled for
of them will depend on the circumstances of the case. pornographic purposes.
2 fundamental principles: LEGAL ETHICS:
1. The police & the prosecuting authority should not knowingly • Seek to promote a fair criminal justice system.
allow a pattern of contravention of a certain statute to develop
then unexpectedly arrest & prosecute. No private practitioner who has no authority to prosecute
2. Discretionary prosecution is no licence for discriminatory may assist the State prosecution by cross-examining the
prosecution. defence witness on behalf of the prosecution or address the
• S 9 – everyone is equal. court.
