Chapter 2 – The Criminal Courts of the Republic

Question 1

➢ Section 165(1) of the Constitution

Answer 1

▪ The judicial authority of the Republic is vested in the courts.

Question 2

Section 165(2) of the Constitution

Answer 2

▪ The courts are independent and subject only to the Constitution, which must apply impartially and without
fear, favour or prejudice.

Question 3

The Superior Courts

Answer 3

➢ The Constitutional Court
➢ The Supreme Court of Appeal
➢ The High Court of South Africa
➢ Any other court of a status similar to the High Court.

Question 4

The Lower Courts

Answer 4

➢ Regional Courts
➢ District Courts

Question 5

Criminal courts relation to Children

Answer 5

➢ There is no separate criminal justice system exclusively for
children, although there are specific provisions relating to
child offenders in the pre-trial, trial and post-trial criminal
process contained in the Child Justice Act and the Criminal
Procedure Act.

Question 6

Criminal courts relation to Sexual Offences

Answer 6

➢ In terms of the judicial matters second amendment Act 43 of
2013, certain divisions of the High Court and certain
Magistrates’ courts may be designated by the Minister as
special sexual offences courts dealing with sexual offences.

Question 7

duty of the The Chief Justice

Answer 7

➢ Section 165(6) of the Constitution
▪ Head of the Judiciary
▪ Establishes and monitors the norms and standards
necessary for exercising the judicial functions of all courts.

Question 8

Development of the HC

Answer 8

➢ Since 2013, the Constitution also provides for a single High
Court of South Africa which is instead separated into various
‘divisions.’

Question 9

The Constitutional Court
❖ Composition

Answer 9

➢ Its seat is in Johannesburg.
➢ Chief Justice, Deputy Chief Justice and 9 other Justices.
➢ Section 167(2) → Quorum is equal to at least 8 judges.

Question 10

Constitutional Jurisdiction

Answer 10

➢ The court has final jurisdiction in respect of all matters.

Question 11

Section 167(3)(a) of the Constitution

Answer 11

▪ The court may decide on all constitutional matters and
may decide on any factual or legal matters only if the Constitutional Court grants leave to appeal on the grounds
that the matter raises an arguable point of law of general public importance which ought to be considered by this
court.

Question 12

➢ Section 167(3)(c) of the Constitution

Answer 12

▪ The Constitutional Court makes the final decision on whether it has jurisdiction.

Question 13

➢ Section 167(5) of the Constitution

Answer 13

▪ It also pronounces the final decision on whether any Act is
constitutional or unconstitutional, and no order of such a
nature made by a court lower than the Constitutional Court
has any force until it is confirmed by the Constitutional
Court.

Question 14

Section 167(4) of the Constitution on the Exclusive Jurisdiction of the Constitutional Court

Answer 14

▪ The Constitutional Court is the only court that may decide:
* (a) Disputes between organs of state in the national or
provincial sphere concerning the constitutional status,
powers or functions of any of those organs of state.
* (b) The constitutionality of any parliamentary or
provincial Bill.
* (c) The constitutionality of any amendment to the
Constitution.
* The question of whether the Parliament or the President
has failed to fulfil a constitutional obligation.
▪ The Constitutional Court also decides whether an
applicant may bring a constitutional matter directly to the
court.

Question 15

Section 167(7) of the Constitution on exclusive jurisdiction of CC

Answer 15

▪ A constitutional matter includes any issues involving the
interpretation, protection or enforcement of the Constitution.

Question 16

❖ The Superior Courts Act’s Influence

Answer 16

➢ Section 15(2) of the Superior Courts Act
▪ The Minister may by virtue of this provision invoke a
decision of the Constitutional Court on a question of law
when there are conflicting decisions on a question of law
or when the Minister has any doubt as to the correctness
of any decision given by any division in any criminal case on
a question of law.

Question 17

❖ Appeal

Answer 17

➢ An applicant may be granted leave to appeal from another
court (usually the Supreme Court of Appeal.

Question 18

Authority on appeal

Answer 18

➢ Section 167(3)(b)(ii) of the Constitution
▪ The Constitutional Court has appeal jurisdiction to grant
leave to appeal and to decide on an appeal of general
public importance for the law.

Question 19

Composition of The Supreme Court of Appeal

Answer 19

➢ The court has its seat in Bloemfontein but may convene
elsewhere when expedient and in the interests of justice –
Section 5(b) of Act 10 of 2013.
➢ It consists of a President, Deputy President and as many
judges as may be determined in accordance with the
prescribed criteria and approved by the President of the Court.

Question 20

Quorum for Criminal Matters (SCA)

Answer 20

➢ Usually 5 judges.

➢ Section 13(1) of Act 10 of 2013
▪ The President may order that 3 judges or more than 5 judges hear a matter if they are of the view that the
importance of the matter calls for it.

Question 21

Constitutional Jurisdiction of SCA

Answer 21

➢ May decide on any matter of appeal.
➢ May enquire into and rule on the constitutionality of any
legislation or any conduct of the President (S 170) but such a
ruling must be **confirmed by the Constitutional Court **(S 172).
➢ May develop the common law with due regard to the interests
of justice (S173).

Question 22

Things the SCA has the authority to decide on:

Answer 22

▪ Appeals
▪ Matters relevant to appeals
▪ Any matter referred to it in terms of an Act of Parliament

Question 23

Rules of Jurisdiction of SCA

Answer 23

▪ It is not a court of first instance.
▪ The SCA does not have original sentencing jurisdiction, but
may correct incorrect sentences in accordance with the
sentencing jurisdiction of the trial court as a court of first instance.
▪ It has the inherent power to regulate its own procedures.
▪ May remove any person interrupting the proceedings or influencing or insulting any member of the court.

Question 24

Rules of Appeal

Answer 24

▪ Section 16 of Act 10 of 2013 and Section 315 of Act 51 1977
* The SCA has the authority to hear an appeal against any order or judgment of the High Court and to decide
such an appeal.
* However, persons who have been found guilty by any division of the High Court may not automatically appeal
to the SCA.
* Instead they must firstly seek leave to appeal from the High Court.
* Failing leave to appeal from the High Court, they must secondly

Question 25

▪ Section 333 of Act 51 of 1977

Answer 25

Minister's Doubt About a Decision: If the Minister doubts the correctness of a High Court decision—either about a legal question or because it conflicts with other decisions—the Minister can refer the matter to the Supreme Court of Appeal (SCA). The SCA will review and decide the issue to provide guidance for all courts. Effect of the SCA’s Decision: The SCA’s decision does not reverse or change earlier judgments by other courts. However, in special cases, the executive (e.g., the government) may show mercy to a convicted person if it becomes clear that their conviction was unjustifiable based on the SCA’s ruling.

Question 26

Composition of the HC

Answer 26

➢ Each division consists of a Judge President, one or more Deputy Judge Presidents and as many other judges as may be determined in accordance with the prescribed criteria. ➢ A single judge presides over a trial matter unless a full bench of three judges is appointed. ➢ An appeal is heard by either 2 or 3 judges.

Question 27

Constitutional Jurisdiction of HC

Answer 27

➢ Section 169 of the Constitution ▪ The court has jurisdiction to decide the constitutionality of any legislation or any conduct of the President. ➢ Section 172 of the Constitution ▪ The High Court may develop the common law.

Question 28

What jurisdiction does the High Court have in appeals and reviews?

Answer 28

The High Court has appeal and review jurisdiction over decisions made by the lower courts.

Question 29

When can the High Court, sitting as a ‘full court,’ hear an appeal?

Answer 29

When sitting as a ‘**full court’ (3 judges)**, the High Court has appellate jurisdiction to hear an appeal in a **criminal case** decided by a **single judge**, provided that **the questions of law, fact, and other considerations involved in the appeal do not require the attention of the Supreme Court of Appeal**

Question 30

Is leave to appeal always required?

Answer 30

Yes, leave to appeal is generally required unless specific circumstances relating to child offenders are present.

Question 31

What does it mean for the main seat of a division to have concurrent jurisdiction with a local seat?

Answer 31

It means the main seat and the local seat operate simultaneously, and cases can be transferred between the two.

Question 32

What are circuit courts, and who establishes them?

Answer 32

Circuit courts are established by the Judge President of a High Court division to adjudicate civil and criminal matters.

Question 33

How often do circuit courts sit?

Answer 33

Circuit courts must sit at least twice a year at times and places determined by the Judge President.

Question 34

Magistrates’ Courts ❖ Composition

Answer 34

Composition ➢ Established in terms of section 1 of the Magistrates’ Courts Act. ➢ They are divided into: ▪ District Court ▪ Regional Court ➢ There are also periodical courts which sit at regular intervals at places other than the seats of the fixed permanent district courts, performing the same function as circuit courts do for the High Court.

Question 35

➢ Section 91(1)(b) of the Magistrates’ Courts Act

Answer 35

▪ No person shall without his or her consent, be liable to appear as an accused before any periodical court unless he or she resides nearer to the place where the periodical court is held than to the seat of the magistracy of the district.

Question 36

➢ Section 170 of the Constitution on Constitutional and Appeal Jurisdiction

Answer 36

▪ Lower courts do not have the jurisdiction to enquire into or rule on the constitutionality of any legislation or on any conduct of the President.

Question 37

➢ Section 29A of the Magistrates’ Court Act on Constitutional and Appeal Jurisdiction

Answer 37

▪ Lower courts must decide on the issue of granting or denying leave to appeal or review a matter to the High Court. ▪ Unless, by appeal is lodged against a conviction or sentence of chiefs, headmen and chiefs’ deputies.

Question 38

❖ Other Lower Courts

Answer 38

➢ It is foreseen that if or when traditional courts are introduced as part of a traditional criminal justice system, in terms of the Traditional Courts’ Bill (which is currently under review), these courts will have jurisdiction to try certain offences committed within a traditional courts’ jurisdiction according to traditional law and customs.

Question 39

Overview of Jurisdiction of Criminal Courts

Answer 39

❖ The following distinctions are relevant: ➢ Jurisdiction in respect of **offences, territory and punishment** ➢ Jurisdiction in respect of the **validity of the provisions** of any Act

Question 40

What jurisdiction does the HC have iro of offences?

Answer 40

➢ Original jurisdiction in respect of all offences.

Question 41

What jurisdiction do district courts have iro of offences?

Answer 41

➢ Jurisdiction to try all crimes except: ▪ Murder ▪ Treason ▪ Rape ▪ Compelled Rape ➢ Jurisdiction to try some serious offences against the State.

Question 42

What jurisdiction do regional courts have iro of offences?

Answer 42

➢ A regional court may try all crimes except treason. ➢ It may try murder and rape.

Question 43

What section of the Magistrates' Courts Act 32 of 1944, stiplates its jurisdiction?

Answer 43

➢ Section 89, Act 32 of 1944 ▪ (1) The court, other than the court of a regional division, shall have jurisdiction over all offences, except treason, murder, rape and compelled rape as contemplated in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively. ▪ (2) The court of a regional division shall have jurisdiction over all offences except treason.

Question 44

Ammendment to the Magistrates' Courts Act 32 of 1944,

Answer 44

➢ Section 58, Act 120 of 1993 Magistrates' courts (excluding regional divisions) can handle all offences except treason, murder, and rape. Regional courts can handle all offences except treason.

Question 45

***Hull 1948 *** on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences Committed on South African Territory

Answer 45

▪ It was held that a division of the High Court has jurisdiction to put into effect a suspended sentence imposed by another division or by a magistrate’s court.

Question 46

s4 of the Civil Aviation Offences Act on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences Committed on South African Territory

Answer 46

▪ This is an example of where the legislature sometimes lays down, in respect of specific offences, that they shall for the purposes of jurisdiction be deemed to have been committed in any place where the accused happens to be.

Question 47

Fairfield 1920 on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences Committed on South African Territory

Answer 47

It was held that if an Act creates an offence and confers jurisdiction merely on a lower court in respect of such offence, the jurisdiction of the High Court is not ousted in respect of the offence (unless there is an express provision in the Act to this effect).

Question 48

s111 of CPA on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences Committed on South African Territory

Answer 48

This provision gives the National Director of Public Prosecutions (NDPP) the authority to decide that a trial can take place in a court within the jurisdiction of a different director. It applies to both lower courts and High Courts, ensuring flexibility in the administration of justice across different areas.

Question 49

➢ Section 22(3) of the National Prosecuting Authority Act 32 of 1998 on The Divisions of the High Court (Extensions) related to Jurisdiction and Extended Jurisdiction in Respect of Offences Committed on South African Territory

Answer 49

This provision allows the National Director of Public Prosecutions (NDPP) or a deputy director, with written authorization from the NDPP, to direct that an offence committed fully or partly in one jurisdiction be investigated and tried in another jurisdiction. This must be done in the interest of justice and is subject to section 111 of the Criminal Procedure Act (CPA). Such a directive must be issued in writing.

Question 50

Mamase 2010

Answer 50

* The directive must be issued before the indictment has been served on the accused. ▪ Section 111(3) does not prohibit such removal even though the accused has already appeared in court.

Question 51

Summaey trial in District Courts and Regional Courts

Answer 51

In a summary trial the accused is charged in the magistrate’s court and this court itself decides whether he or she is guilty or not guilty.

Question 52

Preparatory examination in District Courts and Regional Courts

Answer 52

In a preparatory examination, there is a hearing in which the accused is not tried. The magistrate does not judge whether he or she is guilty or not guilty, but only hears the evidence which is then sent to the director of public prosecutions who will decide whether to institute a prosecution or not and in which court.

Question 53

Section 90 of the Magistrates’ Courts Act on summary trials

Answer 53

lays down that a district court and a regional court have jurisdiction to hear trials of persons who are charged with an offence committed within the district or within the regional division (consisting of a number of districts) respectively.

Question 54

What is the principle in Section 90 of the Magistrates’ Courts Act also refered to?

Answer 54

This principle has been extended by further provisions of section 90 and is referred to as a four kilometers rule. ➢ NB! → It was previously “2 miles”

Question 55

Section 90(1) of the Magistrates’ Courts Act (NB General Rule)

Answer 55

(a) If the offence was committed within 4 kilometers beyond the district or regional division boundary. (b) If the offence occurred on a vessel or vehicle during a journey, any part of which was within 4 kilometers of the district or regional division boundary. (c) If the offence happened on a vessel traveling on a river within the Republic (or forming part of its boundary), and the journey or part of it was within the district, regional division, or within 4 kilometers of it. (d) If the offence occurred on a vessel in the Republic's territorial waters adjoining the district or regional division. (e) If the offence began or was completed within the district or regional division * … such a person may be tried by the court of the district or of the regional division, as the case may be, as if he or she had been charged with an offence committed within the district or within the regional division respectively.

Question 56

Baba JS (Summary trials)

Answer 56

A person can be tried in a specific area for an offence committed within four kilometers beyond its boundary, as long as it is a common law offence or a statutory offence operative in both provinces. However, a court cannot apply statutory law from its own area if the act or omission occurred in another province where the specific statutory provision is not applicable, even if a similar law exists there. For example, a person could not be tried in Kimberley under the Cape Act for resisting the police when the act occurred in Boshof (Free State), even though the Free State had a similar law. The court ruled that the existence of a similar law in another province does not affect jurisdiction.

Question 57

Mpika (Summary trials)

Answer 57

Courts cannot enforce statutory laws from another province if those laws are not operative in their own jurisdiction. This principle was correctly affirmed in this case, emphasizing that the statutory law must be applicable in the province where the court resides for it to be applied.

Question 58

Khuzwayo 1981

Answer 58

highlights that if two offences are identical but occur in different areas, the sentencing may differ. For instance, one area might require a mandatory minimum sentence after conviction, while the other area does not impose such a requirement. This demonstrates the jurisdictional variations in sentencing laws.

Question 59

Makesi 1981

Answer 59

* Subject to the further remarks on extraterritorial jurisdiction referred to below, a South African court does not have the jurisdiction to adjudicate upon an offence committed in a foreign state and the four kilometers rule is not applicable in such cases

Question 60

➢ Section 90(2) of the Magistrates’ Courts Act

Answer 60

▪ Where it is uncertain in which of several jurisdictions an offence has been committed, it may be tried in any of such jurisdictions.

Question 61

➢ Section 90(3) of the Magistrates’ Courts Act

Answer 61

▪ A person charged with an offence may be tried by the court of any district or any regional division, as the case may be, wherein any act, omission or event which is an element of the **offence took place.**

Question 62

➢ Section 90(4) of the Magistrates’ Courts Act

Answer 62

▪ A person charged with **theft of property or with obtaining property by an offence,** or with an offence which involves the receiving of any property by him or her, may also be tried by the court of any district or regional division, as the case may be, **wherein he or she has or had part of the property in his or her possession.**

Question 63

Section 90(5) of the Magistrates’ Courts Act

Answer 63

▪ A person charged with **kidnapping, child-stealing or abduction** may also be tried by the court of any district, or of any regional division, through or in which he or she conveyed or concealed or detained the person kidnapped, stolen or abducted.

Question 64

➢ Section 90(6) of the Magistrates’ Courts Act

Answer 64

▪ Where by any special statutory provision a Magistrate’s court has jurisdiction in respect of an **offence committed beyond the local limits of the district** (or of the regional division), such a court is not deprived of such jurisdiction by any of the provisions of section 90 of the Magistrates’ Courts Act.

Question 66

➢ Section 90(7) of the Magistrates’ Courts Act

Answer 66

If **offences were committed in different districts but fall under the same director of public prosecutions**, the director can issue a written directive for the case to be tried in a specific magistrate’s court, treating the offences as if they occurred within that court's jurisdiction. If the offence qualifies to be tried in a regional court, the regional court where the magistrate’s court is located will also have jurisdiction.

Question 67

➢ Section 90(8) of the Magistrate’s Courts Act

Answer 67

In certain situations, the director of public prosecutions can issue a written order for the accused to be charged in any district or regional court within the province or area where the director holds office. This decision is typically made to address logistical challenges, such as managing a large number of accused individuals or preventing excessive inconvenience or public disorder.

Question 68

➢ Section 90(9) of the Magistrates’ Courts Act

Answer 68

▪ In terms of the provisions of section 110(1) of the CPA, states that if a person is charged in the wrong court regarding territorial jurisdiction and does not object within a reasonable time, the court where the charge was laid will automatically gain jurisdiction to try the case. This ensures that delays or oversights in objections do not obstruct the administration of justice.

Question 69

Section 90(10) of the Magistrates’ Courts Act

Answer 69

highlights that magistrates’ courts have jurisdiction under specific statutory provisions. For example, Section 18 of the Aviation Act 74 of 1962 states that offences under the Act or committed on a South African aircraft are considered, for criminal jurisdiction purposes, to have been committed wherever the accused is located.

Question 70

➢ Section 90(11) of the Magistrates’ Courts Act

Answer 70

▪ Section 111 of the CPA confers upon the NDPP an unlimited distraction to order a trial to take place in the area of another director of public prosecutions

Question 71

Preparatory Examinations and Preliminary Enquiries ➢ Section 125 of the Magistrates’ Courts Act

Answer 71

▪ Regulates the jurisdiction of magistrates’ courts. ▪ A preparatory examination is conducted in a magistrate’s court within who area of jurisdiction the offence has allegedly been committed. ▪ The NDPP may similar move the examination to another magistrate’s court.

Question 72

❖ Preparatory Examinations and Preliminary Enquiries ➢ Section 43(3)€ of the Child Justice Act

Answer 72

▪ The child in conflict with the law and below 18 years of age must appear before a lower court.

Question 73

➢ Section 47 of the Child Justice Act

Answer 73

▪ Sets out the procedure of the preliminary enquiry.

Question 74

➢ Section 52(5) of the Child Justice Act

Answer 74

▪ At conclusion of the preliminary enquiry the magistrate at such enquiry may order that the matter be diverted or that the matter be referred to a child justice court. \

Question 75

Jurisdiction in Respect of Offences committed Outside South Africa ❖ The General Principles ➢ Makhutla case

Answer 75

▪ The general principle is that the courts of the Republic will exercise jurisdiction with regard to offences committed on South African territory only.

Question 76

Jurisdiction in Respect of Offences committed Outside South Africa Kuanda v President of the Republic of South Africa

Answer 76

▪ Para 38 * It is a general rule of international law that the laws of a State ordinarily apply only within its own territory.da v President of the Republic of South Africa 2005 (CC) ▪ Para 38 * It is a general rule of international law that the laws of a State ordinarily apply only within its own territory.

Question 77

The Exceptions (Listed) to Jurisdiction in Respect of Offences committed Outside South Africa

Answer 77

➢ High Treason ➢ Genocide, Crimes Against Humanity and War Crimes ➢ Trafficking of Persons ➢ Appropriation of Theft ➢ Offences Committed on Ships ➢ Offences Committed on Aircraft ➢ Offences on Subsequently Annexed Land ➢ Antarctica Crimes ➢ Certain Crimes Beyond Borders