An introduction to our courts and court procedure

Attorney Paul Jacobson provides a basic introduction to our civil court system.

An introduction to our courts and court procedure

Source: Attorney Paul Jacobson

While most people have a vague idea about our court structure, I suspect not many people know enough to make informed decisions about the forum they litigate in and more or less what to expect.  This tends to unnecessarily mystify the litigation process and scare people away from our court system.  I’d like to shed some light on our civil court system and give you, my visitors, a basic knowledge of our civil procedure over the course of a few articles on this website.

I must just caution you that these articles are intended to give you a basic idea what to expect from our civil court system.  It is mostly theoretical and practical experience of our court system may be fairly different.  Although our court system is governed largely by rules, the system is fairly fluid and flexible.  It has to be, for many reasons.  That fluidity and flexibility can give rise to quite a bit of frustration when used to thwart a litigant but this is really just the way the system works.

The starting point is really a basic introduction to our civil court structure.  When I refer to our “civil” court structure I am referring to the court structure that we use in private or civil litigation.  For the most part this type of litigation involves disputes over contracts or instances where one party causes the other to suffer some form of loss (usually financial).  These disputes are usually between two private parties (as opposed to criminal matters where the State prosecutes a private party).

There are two main court structures in South Africa.  There are the so-called “lower” courts and there are “superior” courts.  The lower courts generally comprise Magistrates Courts which are presided over by judicial officers called Magistrates (there are also courts called Small Claims Courts which I will deal with in a separate article).  The superior courts comprise the various divisions of the High Court, the Supreme Court of Appeal and the Constitutional Court.  Superior courts are presided over by judges.  Our court structures and the composition of those courts is largely set out in Chapter 8 of the Constitution of the Republic of South Africa, 1996.

The two courts you would usually institute proceedings in would, save for certain special types of cases, usually be either the Magistrates Court or the High Court.  The considerations which generally determine which court you approach first are detailed in the Magistrates Court Act and the Magistrates Court Rules of Court (a set of rules that govern the court proceedings in the Magistrates Court).  Generally speaking, you can launch the following proceedings in a Magistrates Court (this is not intended to be an all-inclusive list and may not be applicable in certain instances):

  • actions in which you would claim delivery or transfer of either movable or immovable (for example, land) property;
  • actions to eject the occupier of a premises;
  • actions to determine a right of way;
  • actions arising out of a “liquid document” (where the amount claimed appears clearly from the document itself) or mortgage bond;
  • actions arising out of a credit agreement;
  • applications for the liquidation of a close corporation; and
  • general actions claiming compensation.

Except for where there are certain consents to the contrary, proceedings in the Magistrates Court are limited to matters where the value of the proceedings is less than R100 000.

As a litigant, you are always free to approach a High Court directly.  Judges discourage litigants skipping Magistrates Courts by only allowing costs on the Magistrates Court scale (more on that later) as this could flood the High Courts.  While the Magistrates Court is a “creature of statute” and its processes are governed by the Magistrates Court Act and its Rules of Court (not to mention other legislation), the High Court has what we call “inherent” jurisdiction to hear whatever matter it wishes to hear barring those matters which it is not permitted to entertain (certain types of constitutional matters are reserved for the Constitutional Court).  You can launch virtually any form of proceeding in the High Court and the judge (or judges) has the ability to at least consider whether to hear the matter).

Magistrates Court and High Court are also referred to as courts of first instance because you can launch completely new proceedings in these courts.  This is in contrast to the Supreme Court of Appeal and the Constitutional Court which are mostly courts of appeal.  These two courts of appeal mostly hear appeals from the High Court where a judgment has already been handed down in a matter.  As an aside, there are instances where the Constitutional Court can be approached directly but these instances are few.

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