CIV3701
ASSESSMENT 1
SEMESTER 2 - 2022
, QUESTION 1
(a) Critically compare the role of a commissioner in the Small claims court to
that of a judicial officer in the Anglo-American system and Continental
system in respect of the conduct of trial proceedings. (6)
There is no legal representation permissible in a Small claims court. The role of the
commissioner in a small claims court is radically modified. The commissioner plays an
active role in assisting the litigants in presenting their cases. The proceedings of a
small claims court are never recorded; however, the commissioner must record his or
her findings/judgement.
In South Africa the role of the judicial officer is passive. It is likened to that of an umpire
who ensures compliance with the rules of the game but does not participate in the
game itself. The judicial officer is restricted to the evidence that the litigants have
chosen to present during a trial or a hearing on motion. This means that the judicial
official may not introduce new evidence or raise additional matters of law. In brief, the
judicial official is not responsible for ensuring that the case presented by each litigant
is complete. The judicial official reaches a decision on the case purely on the basis of
the evidence and arguments in law put forward by each litigant.
In the inquisitorial system, the judicial officers participate directly in the process of
litigation, from the commencement of the proceedings until the conclusion of the
hearing. Along with the parties, judicial officers are actively involved in the conduct of
proceedings and in determining the facts of the case. Other characteristics of the
Continental system are as follows: “pleadings” are in the form of notices to the parties
and include evidence; in certain instances, judicial officers are involved in the
gathering of evidence; the trial is in the form of a hearing in which a judicial official may
participate actively by asking questions, and sometimes by leading evidence. In
summary, in the Continental system, a judicial officer is the trier of both fact and law.
ASSESSMENT 1
SEMESTER 2 - 2022
, QUESTION 1
(a) Critically compare the role of a commissioner in the Small claims court to
that of a judicial officer in the Anglo-American system and Continental
system in respect of the conduct of trial proceedings. (6)
There is no legal representation permissible in a Small claims court. The role of the
commissioner in a small claims court is radically modified. The commissioner plays an
active role in assisting the litigants in presenting their cases. The proceedings of a
small claims court are never recorded; however, the commissioner must record his or
her findings/judgement.
In South Africa the role of the judicial officer is passive. It is likened to that of an umpire
who ensures compliance with the rules of the game but does not participate in the
game itself. The judicial officer is restricted to the evidence that the litigants have
chosen to present during a trial or a hearing on motion. This means that the judicial
official may not introduce new evidence or raise additional matters of law. In brief, the
judicial official is not responsible for ensuring that the case presented by each litigant
is complete. The judicial official reaches a decision on the case purely on the basis of
the evidence and arguments in law put forward by each litigant.
In the inquisitorial system, the judicial officers participate directly in the process of
litigation, from the commencement of the proceedings until the conclusion of the
hearing. Along with the parties, judicial officers are actively involved in the conduct of
proceedings and in determining the facts of the case. Other characteristics of the
Continental system are as follows: “pleadings” are in the form of notices to the parties
and include evidence; in certain instances, judicial officers are involved in the
gathering of evidence; the trial is in the form of a hearing in which a judicial official may
participate actively by asking questions, and sometimes by leading evidence. In
summary, in the Continental system, a judicial officer is the trier of both fact and law.
