Introduction to Law

LWITA1-11 (2024)

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 What will be covered
in today’s lesson?

Adjudication
Week 4
Lesson 1 Rules of
precedent

SA judiciary
system
Adjudication
z

▪ The courts and their judges and magistrates are responsible for adjudicating and interpreting the law.

▪ Ratio descendi in adjudication *

▪ The Constitution and adjudication

▪ section 165 of the Constitution, the judicial authority in South Africa is vested in, or placed in the
hands of, the courts. The courts are independent; they are only subject to the Constitution and the
law.

▪ Section 39(2) of the Constitution specifically grants law-making powers to every court “[w]hen
interpreting any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

▪ Section 165(2) provides that ‘the courts are independent and subject only to the Constitution and
the law, which they must apply impartially and without fear, favour or prejudice.’
 Adjudication and the rule of law
Institutional resolution of disputes
• No one can take law into their own hands
• S v Makwenyane para 167 - “in a
constitutional state individuals agree to
abandon their right to self help in the
protection of their rights only because the
state assumes the obligation to protect these
rights”
• Anyone has the right to challenge legality of
the law or conduct.
Section 34 of the
Constitution
Everyone has the right to
have any dispute that can be
resolved by the application of
law decided in a fair public
hearing before a court or
where appropriate another
independent and impartial
tribunal or forum
 z

Adjudication
When judges adjudicate on matters, they must be INDEPENDENT
(INDEPENDENCE OF THE JUDICIARY)
▪ 165(3) of the Constitution

▪ This section provides that no ‘person or organ of state may interfere with the
functioning of the courts’
▪ De Lange v Smuts

▪ Test for judicial independence – objective test

▪ Van Rooyen v S (General Council of the Bar of South Africa intervening),

 z

Adjudication

When judges adjudicate on matters, they must be IMPARTIAL

▪ Impartiality is that quality of open-minded readiness to persuasion
▪ Test – objective
▪ Question – what should judges be open to?
▪ Audi alteram partem

▪ Evidence

▪ Submissions of counsel
https://www.youtube.co
m/watch?v=yggN301DPz
w
CASE STUDY 1
GROUP ACTIVITY 1

What is a recusal?

Why would a judge recuse themselves

from a case?

During the apartheid era, the independence of the judiciary

was not guaranteed. In a short essay, explain how the
independence of the judiciary is protected in our new
democratic, constitutional dispensation
RULES OF PRECEDENT

Stare
decisis

Obiter Ratio
Dicta descendi
RULES OF PRECEDENT
TYPES OF JUDGEMENT
• Unanimous decision
Create precedent
• Majority judgement
• Separate concurring judgement
• Dissenting judgement
Persuasive
• Minority judgement
APPEAL VS REVIEW
APPEAL
Lodged when a court has allegedly erred in
its decision
Higher court considers whether a lower
court made the correct decision on the facts
and the law
Court then makes a decision by either
upholding or dismissing the appeal
REVIEW
High court considers whether there
have been irregularities in the
procedure's adopted by a lower
court
E.g if the judge is biased or did not
afford the correct opportunity to
present a case, a review would be an
appropriate remedy
CAN YOU IDENTIFY
THE FACES ON THE
SLIDE?
1. WHAT COURTS DOES
THE JUDICIAL SYSTEM IN
SOUTH AFRICA CONSIST
OF?
2. HOW MANY JUDGES SIT
IN THE CONSTITUTIONAL
COURT?
SOUTH AFRICAS JUDICIAL SYSTEM
z
THE CONSTITUTIONAL COURT
 THE CONSTITUTIONAL COURT
z

▪ 11 judges of the CC, namely a Chief Justice, Deputy Chief

Justice and 9 Judges.
▪ A matter must be heard by at least 8 judges.

▪ The Constitutional Court is the apex court in South Africa. Its

decisions cannot be changed by any other court.

▪ The court decides constitutional and general matters.

▪ A constitutional matter includes any issue involving the

interpretation, protection or enforcement of the
Constitution.

▪ General matters are heard if the Constitutional Court

grants leave to appeal
 z
THE SUPREME COURT OF APPEAL
▪ Previously known as the Appellate Division
▪ The Court generally sits in panels of three or five judges, depending on the
nature of the appeal.
▪ highest court in respect of all other matters
▪ Exclusively a court of appeal
▪ In terms of the Constitution, the SCA: -
▪ may decide any matter, except certain labour and competition matters; but
▪ is purely an appeal court, and it may decide only appeals and issues connected with
appeals.

▪ Decisions of the SCA = binding on all lower courts

▪ These decisions are an important source of law.
POP QUIZ

Which court can challenge the decision of the SCA?

What is an appeal?

Can the SCA be a court of first instance?

Can the constitutional court be a court of first instance?

What is jurisdiction?
 What will be covered
in today’s lesson?

SA judiciary system
Week 5 continued…

Lesson 2 Alternative Dispute

Resolution
Case Study

High Court:
John and Mary decide to file a lawsuit at the High Court, as it has general
jurisdiction over a wide range of matters. They believe that their case falls
within the jurisdiction of the High Court, which can handle civil cases
involving land ownership disputes.

Source: Mafuso (2023)

 ▪ decisions of the High Courts (which used to be known as the Supreme
z
Courts) are binding on Magistrates' Courts within their areas.

▪ Have jurisdiction to hear cases on

▪ Criminal matters

▪ Treason – always heard in the HC

THE HIGH ▪ Any criminal offence, but in practice it is usually serious cases,
e.g
COURT OF
▪ offences where a sentence to imprisonment of more than 15
SOUTH years
AFRICA ▪ Offences where there is a fine of more than R600 000

▪ Civil matters

▪ If claim amount is of more than R400 000

▪ Matters relating to wills, capacity, presumption of death,

▪ Constitutional matters – except where CC states otherwise

▪ HCs established by statute – labour court, divorce court

▪ Jurisdiction as a court of first instance

 z

MAGISTRATES COURT
▪ May not rule on the constitutionality of legislation

▪ May not rule on the conduct of the president

▪ Regional courts

▪ Criminal matters except treason

▪ Sentence limit – 15 years and R600 000 fine

▪ Civil matters – between R200 000 & R400 000.

▪ District courts

▪ All criminal matters except treason, murder, and rape

▪ sentence limit; three years imprisonment and a R120 000 fine

▪ civil matters; where claim is 200,000 or less

▪ includes the children's court and the maintenance court

 SMALL CLAIMS COURT
• Has jurisdiction on certain civil matters
• claim must be for R20,000 or less
• Small Claims Courts deal with any civil matter where the claim is for less than R20 000.
• Examples of matters include:
• claiming goods that are due to you or monies owed
• claiming damages
• claims based on violations of legal agreements or documents.
Case Study

Specialised Courts:
John and Mary discover that there are specialized courts in South Africa
that deal with specific areas of law, such as the Land Claims Court or the
Land Reform Court. They consult with legal experts and find that their
dispute does not fall within the jurisdiction of any specialised court.
Therefore, they determine that pursuing their case at a specialized court
is not applicable.

Source: Mafuso (2023)

SPECIAL COURTS
Land claims court
• Function to restore land that has been dispossessed from people on the basis of racial
discrimination after 19 June 1993

Equality court
• Established under PEPUDA

Childrens court

Maintenance court

Small Claims Court

GROUP ACTIVITY
1. What factors influence the jurisdiction of a court?

2. Abigail is discontented with the decision rendered by the

High Court. She contends that the judge failed to adhere to
the principle of audi alteram partem. Additionally, she
asserts that the judge neglected to consider documents
available to her counsel. In this case, Abigail may seek
recourse through an appeal to a higher court. By appealing
the decision, she can present her grievances and evidence
to a different judicial body for review. This offers a chance
for a fresh examination of the case, potentially resulting in a
different outcome that addresses her concerns about due
process and evidence consideration
 Negotiation Mediation/ Arbitration
conciliation

Also referred to as Appropriate Dispute Resolution

Negotiation • Conflicting parties talk to
each other to find a
solution
• Common goal of parties
= resolving the dispute
through private decision
making
• Parties are in full control
of the process
• Solution win – win
Mediation or
conciliation
• Parties to the dispute PLUS the
Mediator
• Mediator (Third party)
• Independent & impartial
• Information given by one party
to the mediator is confidential
and is not shared with the
other party
• Mediator recommends a
solution
• Parties must consent to the
solution
 ARBITRATION
• Arbitrator
• Independent, impartial third party who acts as a private judge in
the dispute
• Arbitrator hears the case, applies the law and makes a decision
• Decision is known as an AWARD
• Win – lose
• The Arbitration Act 42 of 1965
• Arbitral awards
• final and binding – section 20(2)
• Consequence of having a final and binding arbitral award =
no right of appeal
• Unless the arbitration agreement states otherwise, then the
award is final and binding.
• But review may be possible if there is a material error in the
arbitration process
• Disputes relating to marriage, status and criminal matters
may NOT be subject to arbitration
QUESTIONS = 5 mins

What are the benefits of negotiations?

Which legislation regulates arbitration in

South Africa?

What is the name of a decision given during

arbitration?
GROUP ACTIVITY
James is a lawyer. An engineering consultancy
approaches him for advise on the resolution of a
dispute which they have with one of their
contractors. They ask for James’s opinion on
Alternative Dispute Resolution (ADR), more
specifically Arbitration.
• Define arbitration.
• Discuss the advantages and disadvantages of
arbitration.
• Explain whether or not arbitration is best suited
for the company
WHY ADR?

Preservation
Cost-
of Flexibility
effective
relationships

Time- Privacy of Less

effective parties formality
QUESTIONS – 10 mins

What is ADR?

Give examples of ADR.

ADR is more informal in nature? True/False

What is the court of first instance/ court a quo?

List three special courts

What Happens Next?
• Adjective Law: The Procedural Side of the Legal Story