The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. Their function is to ensure that the law is obeyed. The different courts that deal with specific cases are:

Constitutional Court:

• This is the highest court in all constitutional matters i.e. interpretation, protection or enforcement of the Constitution.

Supreme Court of Appeal:

• Matters on appeal are referred to this court.
• It is the highest court of appeal except in constitutional matters.

High Courts:

• These courts can hear any type of criminal or civil case. Usually it hears cases that are too serious for a Magistrate’s Court.
• It also hears appeals and reviews against judgements in the Magistrate’s Court.
• Cases in High Courts are quite costly.

Magistrate’s Court:

• These are the lower courts.
• They deal with less serious cases
• They cost a lot less than the High Courts.
• Magistrate’s Courts can be divided into:
• Criminal courts, which are further divided into:
• Ordinary or District Courts: These deal with less serious crimes e.g. they cannot deal with crimes such as murder, treason, rape etc. The sentences that they can impose are lower than lose of the Regional Courts.
• Regional Courts: Deal with more serious crimes than the Ordinary Magistrate’s Court and may impose higher sentences as regards imprisonment and/or fines.
• Civil Courts hear cases involving civil claims. However there are certain cases that cannot be brought before them e.g. divorce, testament matters or declaring a person insane.

The Small Claims Court:

• This court deals with certain ‘small’ civil claims i.e. claims for less than R7000. If your claim is for more than R7000, you need to give up part of your claim so that it is less than that amount.
• You may not use a lawyer in these courts, but you can get legal advice to prepare your case.
• Certain matters may not be heard by this Court even if they are below that amount e.g. divorce, matters regarding a will, malicious prosecution, etc.

Special courts:

• The courts mentioned above are the ordinary courts. There are special courts that deal with specific kinds of cases e.g. Labour Court. Labour Appeal Court. Land Claims Court. Family Courts. Children’s Courts, Tax Courts.

Judges:

• Are appointed by the President.
• They hear cases in the Constitutional Court, Supreme Court of Appeal and High Courts.

Assessors:

• In serious criminal cases in the High Courts, two assessors are appointed to help the judge.
• At the conclusion of the court case they give the judge their opinion, which helps the judge to make a decision.

Magistrates:

• They hear and decide cases in the Magistrate's Courts.

Lay assessors:

• Lay assessors are recruited through community organisations and are given basic training on legal procedures.
• They sit with the magistrate in the criminal courts.
• It is their job to help the magistrate reach a fair decision in criminal cases.

Director of Public Prosecutions (DPP) (previously known as Attorney General):

• Each High Court has a DPP.
• They are responsible for all the criminal cases in their province.
• All the prosecutors are under their control.
• The police present the information about a criminal case to the DPP, who then decides if there is enough information to prove in court that the person is guilty and therefore sufficient reason for a trial.

Prosecutors:

• The prosecutor represents the state in a criminal trial against people who are accused of committing a crime.
• Before the trial, the prosecutor consults with the South African Police Services to establish all the facts and to prepare state witnesses.
• The prosecutor then presents all this information in court and tries to convince the judge or magistrate that the accused person is guilty.
• The prosecutor gets the state witnesses to give their account of the incident and also cross-questions the defence witnesses

Attorney:

• The attorney gives advice regarding legal matters and helps prepare cases if it is necessary to go court.
• In complicated cases, the attorney will employ an advocate to argue the case in court.

Advocates:

• Advocates are lawyers who specialise in arguing cases in court and also give advice on complicated issues in law.

Public defenders:

• Handle cases on behalf of people accused in serious criminal cases and who cannot afford their own lawyer.
• Public defenders are lawyers and are paid by the state.

Paralegals:

• Paralegals are people who have had informal training and therefore cannot act in formal legal proceedings.
• They give advice to people and organisations on different aspects of the law, including advice on their rights and ways of protecting their rights.
• Paralegals are not entitled to charge for their services.

Trial:

• This is the actual court case held in the Magistrate’s Court or High Court.
• After hearing all the oral evidence and looking at the exhibits, the Judge or Magistrate makes a decision, called a judgement.

Appeal:

• When a person loses a trial, they can appeal. This means asking a higher court to change the decision.
• No new evidence may be produced at an appeal.

Review:

• If, in your opinion, the court proceedings were unfair or irregular, you can ask a higher court for a review.
• If you don’t have a lawyer and your sentence is above certain set limits, your case will come up for automatic review.

Sometimes cases can be settled out of court thus avoiding the cost of expensive and often slow court cases. Out of court settlements can be done in different ways:

• Negotiation: The parties discuss the matter to find a solution.
• Mediation: A third person is called upon to act as a go-between.
• Arbitration: A third person acts as a ‘judge’ to hear the problem and make a decision, which both parties agree to accept.

Paralegal or other relevant organizations can be called upon for the assistance mentioned.

Criminal cases:
All criminal cases must follow the prescribed rules of criminal procedure. The rules to be followed before getting to court include:

• Powers of the police to question:
• The police may question anyone without arresting the person.
• You must produce your ID book and give your name and address if asked to do so. To refuse is an offence.
• You may ask the police officer to show his/her identity document.
• The police may ask any other questions they wish but you do have the right to refuse to answer.
• The police may ask you to accompany them to the police station. Again, you have the right to refuse but then they may decide to arrest you.
• If you are arrested you must go with them to the police station; however you may refuse to make a statement unless a lawyer is present.

• Powers of the police to search and seize:
• You have the right to privacy of you body and belongings.
  However if the police need to search and seize evidence they may do so in two ways:
1. With a search warrant.
• This is the legal permission to search and is usually signed by a magistrate.
• It must describe the person or place to be searched and the items to be seized.
• You can demand to see the search warrant.
• The search must be carried out in the day unless the warrant specifies that they may search at night.
2. Without a warrant:
   The police do not need a warrant if:
• You agree to be searched.
• They think that the delay in getting a warrant from the magistrate will give you time to destroy evidence.
• You are being arrested.
• The search is at a roadblock but they think there are grounds for a warrant to be issued.
• You are suspected of having illegal items e.g. drugs, dagga, illegal liquor, guns, ammunition, etc with you.
• They think that you have information that can help with an investigation.

• The police can use force to enter your property if you refuse to allow them in.
• Policemen may only search men. Women can only be searched by policewomen. Policemen may also ask any other women to do the search if a policewoman is not available.
• Should you be unlawfully searched or if you are abused by the police you can sue the Minister of Safety and Security.

• Powers of the police to arrest:
• The police may only arrest you if you are a suspect or if they want to lay a charge.
• You can be arrested in two ways:
1. With a warrant of arrest: Usually signed by a magistrate.
2. Without a warrant of arrest in certain circumstances. A few of such examples are:
• You try to escape
• re caught red-handed.
• They think you have committed a serious crime.
• You are under the influence of drugs or alcohol.
• If they think you have unlicensed guns or ammunition or other dangerous weapons
• You broke the conditions of a suspended sentence.

• Making a lawful arrest:
• Police must tell you that you are under arrest.
• Have physical control over you.
• Tell you why they are arresting you.
• The police may use force if you fight or attempt to run away.

• Arrest by an ordinary person (citizen’s arrest):
  You may arrest someone if you suspect that they have committed a crime e.g. if your bag is snatched you may chase, catch and arrest them or if the person is unlawfully on your property and you suspect that they committed a crime.

• Civil cases:
  These are very different to criminal cases. There are two main types – civil claims and interdicts:
1. Civil claims:
   In these cases, you bring a case against another person/company/organisation. It is not the state that prosecutes you as with criminal cases. You can claim for:
• Money owed to you.
• Harm that was done to you.
• Money for harm that was done to you, in other words, compensation for injuries suffered. This compensation is called damages. The claim can be for mental or physical injuries.
• Examples of civil claims: assault, eviction, divorce, defamation, injury as a result of negligent driving, breaking a contract and for money owed to you.
• Parties in a civil claim.
• The two sides in such a claim are also called ‘parties’. The ‘plaintiff ‘ is the person who brings the claim against another and the ‘defendant’ is the person against whom the claim is brought.
• When you use the law to claim from another person, you ‘sue’ that person.
• It is in the interests of both parties to have their own lawyers to handle the comprehensive and complicated legal papers required.

• All claims fall away (prescribe) after a certain period of time. The prescription periods differ for different types of claims. So, find out what the prescription period is before you lose your right to claim
.
• If the act against you is a criminal act, you can make a civil claim and a criminal case at the same time.

2. Interdict:
   An interdict is a specific court order that tells someone to do, or not to do something. Examples:
• Domestic violence interdict to stop violence or abuse in the home
• Interdict to stop a landlord if he wants to evict people in an illegal way.

How to find a lawyer:

• Ask an acquaintance if they know of a lawyer who can help.
• Magistrate’s Courts often have list of lawyers.
• Most big cities have organisations like Legal Resources Centres or Legal Aid Clinic at Universities.
• In rural areas enquire the local civic association, advice office or from paralegal volunteers.

How to pay for a lawyer:
There are some ways that you can get legal help for free, or very for little money. Some lawyers do work for oppressed communities.

In some cases, and if you qualify, the government helps to pay most of your legal fees through the Legal Aid Board.

You must pass a means (income) test to qualify for legal aid. You cannot get Legal Aid for certain types of cases e.g. driving/speeding offences and criminal cases where you plead ‘guilty’.

Means Test: To establish whether you qualify you will be asked what your income is after medical aid, income tax, rent and bond repayments have been deducted.

Where to get Legal Aid?

1. Legal Aid offices:
• Most large cities have Legal Aid offices.
• If there is no office in your area you enquire at the Magistrate’s Court for the local Legal Aid Officer.
• To find out if there is an office in your area you can phone the Head Office at (012) 401 9200.
2. Justice Centres:
• The Legal Aid Board now runs Justice Centres to help people. People requiring their services must also pass a means test.
• Consult your local telephone directory for the contact number.
3. University legal aid clinics:
• Most universities now have law clinics to help people within certain income limits. They do take on the type of cases that the Legal Aid Board does not handle. Senior law students handle the cases.
4. Legal Resource Centres:
• These Centres mostly handle cases that involve human rights law, labour law etc. and usually deal with problems that affect groups of people in the community.

Useful websites:
Paralegal Advice (www.paralegaladvice.org.za)
Legal Aid (www.legal-aid.co.za)