JURISDICTION OF SOUTH AFRICAN
COURTS AND TRIBUNALS
A GUIDE FOR THE LEGAL PRACTITIONER
2011
1
INDEX
1
Jurisdiction – The General Principles
3
2
Structure of the Courts
5
2.1 Introduction
2.2 Hierarchy of the South African Courts
3
The Constitutional Court
6
4
The Supreme Court of Appeal
9
5
The High Court
11
6
The Magistrates’ Courts
16
7
The Small Claims Court
23
8
Special Courts and Tribunals
8.1
Children’s Court
30
2
8.2
Companies Tribunals
33
8.3
Competition Tribunal and Appeal Court
42
8.4
Consumer Commission and Tribunal
43
8.5
Courts of Chiefs and Headmen
54
8.6
Electoral Court
55
8.7
Equality Court
56
8.8
Housing Rental Tribunal
57
8.9
Income Tax Court
58
8.10
Land Claims Court
59
8.11
Labour Courts
60
8.12
Maintenance Court
61
3
1
Jurisdiction – The General Principles
1.1 Introduction
Jurisdiction refers to the authority or the competence of a particular court to hear a matter
which has validly been brought before it and to grant relief in respect of that matter. The
consequence of proceeding in an incorrect court may be severe. If the court lacks
jurisdiction it may refuse to adjudicate and dismiss the matter. The court may also order the
plaintiff to pay the wasted costs. It follows that a consideration of jurisdictional principles
will be a necessary prerequisite to the institution of legal proceedings.
2.1 Two-stage inquiry
In broad terms, jurisdiction entails a two-stage inquiry to establish:
(a) whether an inferior court (such as the Magistrates’ Courts or the Small Claims Court) is
competent to hear a matter or whether the matter lies within the exclusive
competence of a High Court;
(b) which provincial or local division of the High Court, or alternatively which district of the
Magistrates’ Courts, has jurisdiction.
Reference: Theophilopoulos, Rowan, Van Heerden & Boraine Fundamental Principles of Civil
Procedure (2006) Lexisnexis
4
2
Structure of the Courts
2.1 Introduction
According to section 165 of the final Constitution, the judicial authority of South Africa
vests in the courts. The courts are independent and subject only to the Constitution and
the law, which must be applied impartially without favour or prejudice. An order or
judgment issued by a court binds all persons and all State organs to which it is applicable.
2.2 Hierarchy of the South African courts
Section 166 of the final Constitution describes the various courts of South Africa. These are:
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any High Court of Appeal which may be established by an
Act of Parliament to hear appeals from High Courts;
(d) the Magistrates’ Courts;
(e) any other court established or recognised in terms of an Act of Parliament, including
any court that has a status similar to that of the High Court or the Magistrates’
Courts.
5
3
The Constitutional Court
The Constitutional Court was established in terms of the interim Constitution and the
Constitutional Court Complementary Act 13 of 1995. Its existence is confirmed by section
167 of the final Constitution.
The Constitutional Court has its seat in Johannesburg and is the final court of appeal in
respect of all constitutional matters. In terms of section 167(1) of the Constitution, as
amended by Act 34 of 2001, the Constitutional Court is presided over by the Chief Justice,
the Deputy Chief Justice and nine other judges. A matter brought before the Constitutional
Court must be heard by at least eight judges. The procedure to be followed in the
Constitutional Court is contained in the Rules of the Constitutional Court and published in
the Government Gazette. [GN R1675 in GG 25726 of 31 October 2003]
Section 167(3) of the final Constitution provides that the Constitutional Court:
(a) is the highest court in all constitutional matters;
(b) may adjudicate only on constitutional issues and issues that are related to decisions on
constitutional matters;
(c) is the final decision-maker on whether a matter is a constitutional matter and whether
an issue is related to a decision on a constitutional matter.
6
Most of the matters coming before the Constitutional Court are referred to it on appeal
from the Supreme Court of Appeal or the High Court, but there are certain types of
constitutional matters which are reserved for the exclusive and original jurisdiction of the
Constitutional Court and which are initiated only in the Constitutional Court. In terms of
section 167(4) of the final Constitution, only the Constitutional Court may:
(a) decide disputes between organs of State in the national or provincial sphere concerning
the constitutional status, competence or duties of these State organs;
(b) decide on the constitutionality of any parliamentary or provincial Bill, but only in terms
of section 79 or 121;
(c) decide on an application brought by members of the National Assembly or a Provincial
Council for an order declaring all or part of an Act unconstitutional in terms of section
80 or 122;
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide whether Parliament or the President has failed to comply with a constitutional
obligation;
(f) certify a provincial constitution in terms of section 144 of the final Constitution.
All matters concerning constitutional issues (other than those listed in section 167(4)) will
commence in a High Court, unless the Constitutional Court grants an application for direct
access to it in terms of section 167(6) of the final Constitution read with CCR 18.
In terms of section 167(5), the Constitutional Court takes the final decision on the
constitutionality of an Act of Parliament, a provincial Act or the conduct of the President.
7
No order of unconstitutionality given by the Supreme Court of Appeal, a High Court or a
court with similar status is valid until that order has been confirmed by the Constitutional
Court.
Reference: Theophilopoulos, Rowan, Van Heerden & Boraine Fundamental Principles of Civil
Procedure (2006) Lexisnexis
8
4
The Supreme Court of Appeal
The Supreme Court of Appeal (SCA) is the highest court of appeal with regard to all issues
other than constitutional issues. The final Constitution provides that the SCA may hear appeals
in respect of constitutional issues, and a further appeal, on the constitutional issues only, may
then lie to the Constitutional Court. The Supreme Court of Appeal is therefore purely a court
of appeal and not a court of first instance, and it has appeal jurisdiction over the whole of South
Africa. It has no original jurisdiction, and all matters before the court must, of necessity, come
to it on appeal or review from the High Court. The Supreme Court of Appeal has its seat in
Bloemfontein and it consists of a President, a Deputy President and a number of appeal judges.
In terms of section 12 of the Supreme Court Act, the quorum of judges for both civil and
criminal appeals in the Supreme Court of Appeal is generally five judges, and the judgment of
the majority is the judgment of the court. When a majority of judges cannot reach agreement
on a specific judgment, the matter is adjourned and commenced de novo before a new court as
composed and determined by the President of the Court.
The process of the Supreme Court of Appeal is valid throughout South Africa, and its
judgments and orders have effect in the jurisdiction of every other division and can be
executed in the same manner as if they were original judgments or orders of that division.
The procedure to be followed in the Supreme Court of Appeal is contained in the Rules of
9
the Supreme Court of Appeal. These Rules are published in the Government Gazette. [GN
R1523 in GG 19507 of 27 November 1998].
10
5
The High Court
In terms of the High Courts Act 30 of 2008, the High Court of South Africa consists of the
following divisions:
SEAT OF HIGH COURT
NAME OF HIGH COURT
Bhisho
Eastern Cape High Court, Bhisho
Bloemfontein
Free State High Court, Bloemfontein
Cape Town
Western Cape High Court, Cape Town
Durban
KwaZulu-Natal High Court, Durban
Grahamstown
Eastern Cape High Court, Grahamstown
Johannesburg
South Gauteng High Court, Johannesburg
Kimberley
Northern Cape High Court, Kimberley
Mafikeng
North West High Court, Mafikeng
Mthatha
Eastern Cape High Court, Mthatha
Pietermaritzburg
KwaZulu–Natal High Court, Pietermaritzburg
Port Elizabeth
Eastern Cape High Court, Port Elizabeth
Pretoria
North Gauteng High Court, Pretoria
Thohoyandou
Limpopo High Court, Thohoyandou
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5.1 Introduction
The High Court is a court of first instance (court a quo), which means that a matter can be
commenced in the High Court, but it also operates as a court of appeal for the Magistrate’s
Court within its area of jurisdiction. Two judges will usually form the quorum for an appeal
from a Magistrate’s Court. All the High Courts also operate as courts of appeal in respect of
decisions made by a single judge of the High Court. When a decision made by a single High
Court judge is appealed, it will either go to a three-judge bench (full bench) of the same High
Court or to the Supreme Court of Appeal. Appeals are generally directed to the Supreme
Court of Appeal when a matter of law is in issue and to a full bench when issues of fact must
be decided.
A division of the High Court consists of a Judge-President and as many judges as the President
of South Africa may appoint on the advice of the Judicial Service Commission. Generally, a
single judge presides if a High Court sits as court of first instance in a civil matter. Sometimes a
matter can be referred by a single judge for hearing to a full court consisting of three judges,
for example when an important question of law is to be determined. Where only a single judge
gives a judgment, his or her judgment is the judgment of the court. When a full court is in
session, the judgment of the majority of the judges of the full court is the judgment of the
court. If there is no majority judgment, the matter is adjourned and must commence de novo
before a newly appointed court.
12
5.2 Representation in the High Court
A party with locus standi may instruct and be represented by an attorney and advocate or by
an attorney alone where the attorney has a right of appearance in the High Court. It is not
compulsory for a party to have legal representation, and a party may conduct his or her
own case and appear in person before the court. A party may not, however, be represented
by a third party who is not a legal representative. A juristic person cannot be represented
by an official employee and must be represented by an attorney and advocate or by an
attorney alone where the attorney has a right of appearance in the High Court. In addition
the board of directors of a company or the members of a close corporation must pass a
resolution authorising an attorney to institute or defend legal proceedings. In respect of
municipal and other local authorities, a standing resolution usually delegates power to
institute or defend legal proceedings to a specified official. The designated official, on
providing proof of such relevant resolution, may instruct an attorney to act on behalf of the
municipality or local authority.
In the past a power of attorney was always required for legal representation in the High
Court. Presently High Court Rule 7 provides for legal representation without the need to
file a power of attorney. Should the authority of an attorney to act on behalf of a client be
disputed, then the attorney must satisfy the court of a mandate to act on behalf of the
client. A matter may even be postponed to afford the attorney the opportunity to present
proof of the necessary power of attorney. However, in appeal cases, it is essential for the
legal representative to file a power of attorney in order to establish the authorisation to
proceed with the appeal on behalf of the client. The power of attorney must be filed when
the legal representative applies for an appeal date. Each power of attorney must be signed
13
by the client and must comply with specific legal requirements. When the client cannot sign
the power of attorney personally, a third party may do so on the client’s behalf. It is
important for the third party to furnish proof to the registrar of the entitlement to sign the
power of attorney on behalf of the original party.
In terms of High Court Rule 16 the attorney acting on behalf of a party in any proceeding
must notify the opposing party of his or her name and address. In doing so, the attorney is
placed “on record” as the representative of the client. The attorney’s address must be
within eight kilometres of the court building and becomes the address for the service and
delivery of all pleadings, notices and processes. A party may terminate the attorney’s
mandate at any stage of the litigation process and appoint another attorney. A notice is
delivered to the registrar, and all interested parties are informed by notice of the
termination of the previous attorney’s mandate. The newly instructed attorney is obliged to
deliver a notice of entry as attorney of record to the opposing party and the registrar. If a
party terminates the attorney’s mandate and decides to conduct the case personally and
without further legal representation, the party must furnish an address within eight
kilometres of the court building for the service and delivery of processes.
When a client does not pay for legal services rendered or does not furnish proper
instructions, the attorney may decide not to continue to represent the client and withdraw
as the attorney of record. The attorney will notify the client, the opposing party and the
registrar of his or her withdrawal. When the notice of withdrawal is served by hand, an
acknowledgement of receipt will be sufficient proof of withdrawal. When the notice is sent
by registered post, the registered slip will serve as notice of dispatch. Where the client has
failed to make payment, the attorney may withdraw and keep possession of the client’s
14
court file in terms of a lien. The file will be returned to the ex-client only on the payment of
the outstanding fees and the extinction of the lien.
It is good practice to withdraw at an early stage of the litigation process in order to allow
the ex-client sufficient time and opportunity to appoint another attorney or to take such
steps as is necessary for the proper conduct of the case. It is bad practice for an attorney to
withdraw from a case the day before the trial and only then to deliver notice of withdrawal
to the ex-client by registered post, as the client will not receive it in time.
In terms of HCR 15, where a party to any proceedings dies or becomes incapacitated, it is
possible to substitute such a party with an executor, curator, trustee or similar legal
representative. The court may, on notice of application, set aside or vary any addition or
substitution.
Reference: Theophilopoulos, Rowan, Van Heerden & Boraine Fundamental Principles of Civil
Procedure (2006) Lexisnexis
15
6
The Magistrates’ Courts
6.1 Introduction
All Magistrates’ Courts are “creatures of statute” and are created and operate within the four
corners of the Magistrates’ Courts Act. Magistrates’ Courts exist at two levels: District Courts
and Regional Courts. There are almost 500 District Courts in South Africa, each exercising
jurisdiction over a specific geographical area. Each District Court has at least one magistrate
but, for practical reasons, larger centres have a number of additional magistrates. A chief
magistrate will be appointed for any district containing ten or more magistrates. District
Courts exercise civil and criminal jurisdiction.
Section 170 of the final Constitution provides that a Magistrate’s Court may decide any matter
determined by an Act of Parliament, but does not possess the power to enquire into or rule
on the constitutionality of any legislation or any conduct of the President. The procedure to
be followed in the Magistrate’s Court is contained in the Magistrates’ Courts Rules. These
Rules are published in the Government Gazette. [GN R1108 in Regulation Gazette 980 of 21
June 1968 as amended by GN R880 in GG 26601 of 23 July 2004].
16
6.2 Jurisdiction
The Jurisdiction of Regional Courts Amendment Act 31 of 2008 came into effect on
9 August 2010. The amendment provides powers to Regional Courts to deal with
civil matters.
Cases now dealt with by Regional Courts include:
 Family disputes including divorce, maintenance, adoption and matters relating to
custody of minor children;
 Disputes over movable and immovable property of between R100 000 to R300 000
which were dealt with by the High Court before the amendment;
 Credit Agreements of between R100 000 to R300 000;
 Road Accident Fund claims of between R100 000 to R300 000.
Note: Divorce matters can still be instituted in the Central Divorce Courts by virtue of the
provisions of Section 9(2) and (5) of the Amendment Act and can also be instituted
in the High Courts. In other words, there is concurrent jurisdiction in respect of
divorce matters between the Regional Civil Courts and the High Courts.
6.3 Representation in the Magistrates’ Courts
17
Magistrates’ Courts Rule 52(1) provides for the various kinds of party representation in the
Magistrate’s Courts, namely:
(a) A party may, whether personally or by means of a legal practitioner (an advocate,
attorney and candidate attorney), institute or defend legal proceedings and carry it to
completion.
(b) A local authority, company or other incorporated body may act through an officer
nominated by it for the purpose.
(c) A partnership or group of persons associated for a common purpose may act through a
member nominated by it for the purpose.
(d) No person, acting in terms of paragraphs (a), (b) or (c), other than a legal practitioner,
shall be entitled to recover any costs other than necessary disbursements.
In practice it is usual for an attorney to represent a party in the Magistrates’ Courts. An
advocate is not entitled to sign any Magistrate’s Court pleading and must be briefed by an
attorney before drafting pleadings or appearing in court. A candidate attorney may, within
certain limitations, appear before a Magistrate’s Court, board or tribunal, but not before a
High Court.
According to Magistrate Court Rule 52(2) it is unnecessary for a party to file a power of
attorney for the purposes of Magistrate’s Court civil litigation. However, the opposing party
may, within ten days of becoming aware of a person acting on behalf of another person in
litigation, with leave of the court and on good cause shown, challenge the authority of a
person so acting. Thereafter, such a person may not without leave of the court act further
18
until the court is satisfied of his or her authority to do so. The court may even postpone the
trial in order to allow the person to obtain proof of such authorisation.
The following category of persons need not file a power of attorney in terms of Magistrate
Court Rule 52(2):

the State Attorney;

a Deputy State Attorney;

a professional assistant to the State Attorney;

a Deputy State Attorney or any attorney instructed in writing or by telegram by or
on behalf of the State Attorney or a Deputy State Attorney in any matter in which
the State Attorney or a Deputy State Attorney is acting in an official capacity.
In terms of Magistrate Court Rule 52(3) and (4), if a party dies or becomes incompetent to
proceed, the action is suspended until an executor, curator, guardian or other competent
person has been appointed, or until such incompetence ceases to exist. When an executor,
curator, guardian or other person is appointed, the court may, on application, order such
person to be substituted for the person who died or became incompetent.
6.4 Representation of indigent persons
The effective application of the principle that parties are entitled to legal representation is,
however, hampered by the fact that many prospective litigants are not able to bear the cost
of legal representation. An indigent person may approach the Legal Aid Board and various
19
legal aid clinics at universities for assistance. In addition, the indigent person may turn to the
High Court for assistance in terms of a High Court Rule 40 in forma pauperis proceeding or
to the Magistrates’ Courts in terms of a Magistrate Court Rule 53 pro deo proceeding.
6.5 The action and application procedure
When taking instructions from a client and preparing litigation, the attorney must determine
the correct type of proceedings to be used and the correct court to be approached. The
attorney decides whether to employ an action or an application (motion) procedure. If the
incorrect procedure is selected, the client may be penalised in terms of time wasted and a
cost order.
The action procedure is characterised by a reasonable time period for the exchange of
pleadings, followed by a reasonable time period for the preparation for trial. The actual trial
is a forum for the admission of oral viva voce evidence, which may be a time consuming
process, and a trial may therefore be postponed on good cause shown. The application
procedure is said to be more time effective and cheaper when compared with the action
procedure. The application procedure takes up less time because evidence is presented on
the papers (that is, on affidavit) and not through oral evidence. The essential differences
between an action and an application are clearly set out in Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd 1949 3 SA 1155 (T).
20
The most important differences between the action and application procedure may be
summarised as follow:
1
2
ACTION
APPLICATION
Parties are referred to as “plaintiff” and
Parties are referred to as “applicant” and
“defendant”.
“respondent”.
An action is based on a real and material
An application is based on a factual
factual dispute.
dispute of such a nature that it may be
easily dealt with on affidavit or on paper.
An application may also be used for
disputes of law.
3
Commences with the issuing of a
Commences with the issuing of a notice
summons by the plaintiff.
of motion and supporting founding
affidavit by the applicant.
4
Further pleadings are exchanged by the
Further affidavits are exchanged, namely:
parties, namely:
- the opposing affidavit;
- defendant’s plea and counterclaim;
- the replying affidavit (if applicable).
- plaintiff’s reply to defendant’s plea;
-
plaintiff’s
plea
to
defendant’s
counterclaim.
5
After the exchange of pleadings a stage
There is no written “preparation for
called “preparation for trial” follows.
trial” stage.
21
Certain preparatory steps are then
taken, that is, discovery, expert notices,
medical
examinations,
pre-trial
conference etc.
6
The action procedure ends in the trial
The motion procedure ends in the
court, where mainly oral evidence by the
motion court. In principle, no oral
parties and their witnesses is presented.
evidence is presented and the parties do
not testify.
The
case
is
argued
by
legal
representatives on the papers before the
court.
Reference: Theophilopoulos, Rowan, Van Heerden & Boraine Fundamental Principles of Civil
Procedure (2006) Lexisnexis
22
7
Small Claims Courts
7.1 Introduction
The Small Claims Court is a specialised type of court constituted in terms of the Small
Claims Court Act 61 of 1984. The purpose of a Small Claims Court is to make the judicial
system less expensive and more accessible to those persons who cannot afford High Court
and Magistrates’ Courts fees. The Small Claims Court sits after ordinary office hours to
ensure that litigating parties do not lose time and wages because they have to take leave
from work in order to attend court. Costs are reduced by allowing the parties to conduct
their own cases. Legal representation is not allowed in the Small Claims Court. The
presiding officer is a commissioner and not a salaried state official. The Small Claims Court
is also not a court of record, which means that the proceedings are not recorded on tape. A
plaintiff in the Small Claims Court must be a natural person and cannot be a juristic person
or corporation. This requirement serves to prevent the juristic person from using the Small
Claims Court merely as a cost-free debt collecting agency.
7.2 Jurisdiction of the Small Claims Court
The monetary jurisdiction limit of the Small Claims Court is currently R12 000. Section
17(3) of the Small Claims Act indicates that in order to determine whether a claim falls
23
within the monetary jurisdiction of the Small Claims Court no account must be taken of
interest, costs, general or alternative legal relief.
7.3 Jurisdiction in respect of causes of action
In terms of section 15 of The Small Claims Court Act, the Small Claims Court may
adjudicate on the following causes of action:
(a) actions for delivery or transfer of movables or immovables not exceeding R12 000 in
value;
(b) actions for ejection against the occupier of a premises or land within the jurisdiction of
the court (provided that where the right to occupation of the premises or land between
the parties is in dispute, the value of that right to the occupant may not exceed R12
000);
(c) actions based on or arising from a liquid document or a mortgage bond where the
amount does not exceed R12 000;
(d) actions based on or arising from a credit agreement as described in section 1 of the
National Credit Act 34 of 2005 where the claim or value of the goods in dispute does
not exceed R12 000;
(e) actions other than those already mentioned above where the claim or value of the topic
in dispute does not exceed R12 000;
(f) actions for a counterclaim in respect of any cause of action mentioned in (a) to (e)
which does not exceed R12 000.
24
In terms of section 16, the following causes of action are totally excluded from the Small
Claims Court jurisdiction:
(a) cases where dissolution of a marriage or customary union is requested;
(b) cases regarding the validity or interpretation of a will or other testamentary writing;
(c) case regarding the mental capacity and status of a person;
(d) cases wherein specific performance without an alternative claim for payment of damages
is requested, except in the case of
(i) the delivery of an account in respect whereof the claim does not exceed R12 000
or
(ii) the delivery or transfer of movables or immovables where the value does not
exceed R12 000;
(e) cases wherein a decree of perpetual silence is sought;
(f) cases wherein damages are claimed in respect of
(i) libel,
(ii) malicious prosecution,
(iii) seduction,
(iv) breach of promise to marry;
(g) cases wherein an interdict is requested.
7.4 Jurisdiction in respect of the person of the defendant
In terms of section 14(1), a specific Small Claims Court has jurisdiction in respect of:
25
(a) a person who resides, carries on business or is employed within the jurisdiction area of
the court;
(b) a person, with regard to any proceedings, related to an action instituted by the person
in the court;
(c) a person, irrespective of whether he or she resides, carries on business or is employed
within the jurisdiction area of the court, if the cause of action arose wholly within the
jurisdiction area of the court;
(d) a defendant, whether in convention or reconvention who appears and does not object
to the jurisdiction of the court;
(e) a person who is the owner of fixed property in the jurisdictional area of the court in an
action relating to the property or a mortgage bond thereon.
Note that in terms of section 14(2) no action may be instituted in a Small Claims Court
against the State. Furthermore, in terms of section 14(4) a Small Claims Court has no
jurisdiction in an action wholly or partially based upon a cession or transfer of rights.
7.5 Procedure in the Small Claims Court
In terms of section 26 of Act 61 of 1984 the rules of the law of evidence do not apply to
Small Claims Court proceedings, and a commissioner may admit all relevant facts in any
manner deemed necessary. Evidence to prove or disprove a fact in issue may be presented
either orally or in writing. A party may not examine or cross-examine another party or the
witness of the opposing party. The adversarial system does not apply to the Small Claims
Court. The procedure is inquisitorial in nature, and the presiding commissioner actively
26
participates by posing questions to ascertain the claim and the defence. The commissioner
may question any party or witness at any stage of the proceedings. The Act also provides
that the commissioner may allow a party to question any other party or witness.
In accordance with section 27 a party may call one or more witnesses to prove a claim,
counterclaim or defence. A party giving testimony in a Small Claims Court does so after
having taken the oath. Section 23 provides for the suspension of the proceedings where a
case contains difficult questions of law or fact which cannot be properly and conclusively
decided by the Small Claims Court or ought not to be decided by the Small Claims Court.
The plaintiff may then institute an action de novo in another competent court.
7.6 Judgment and costs
In terms of section 34 the Small Claims Court may grant the following judgments:
(a) judgment for the plaintiff with regard to the claim insofar as it has been proved;
(b) judgment for the defendant in respect of a plea or counterclaim insofar as it has been
proved;
(c) absolution from the instance (if the court is of opinion that the evidence does not
enable the court to give judgment in favour of the one or the other party);
(d) judgment with regard to costs as is fair in terms of section 37.
It may also issue an order of suspension against the party in whose favour judgment is
granted, in terms whereof further proceedings with regard to the judgment is suspended
27
wholly or partially for a specific time period while the other party makes arrangements for
compliance with the judgment.
Section 35 provides for default judgment or consent to judgment in the following
circumstances:
If a defendant after a summons in terms of section 29 has been served on him:
(a) Admits liability in writing and give consent to judgment; or
(b) Fails to appear before the court on the court day, or on any day to which the
proceedings had been postponed, the court can on application by the plaintiff grant
judgment to the plaintiff to the extent that the plaintiff has proved the defendant’s
liability and amount of the claim to the satisfaction of the court and the court can
dismiss any counterclaim by the defendant.
Section 36 authorises the court to annul or amend the following judgments suo motu or on
application by any interested party:
(a) a judgment granted by the court in the absence of the person against whom the
judgment is granted (in which case, the application must be enrolled for hearing on a
date within six weeks after the date on which the applicant first became aware of the
judgment);
(b) a judgment granted by the court that is ab origine void or that was obtained by fraud or
common error (in which case, the application must be brought not later than one year
after the applicant first became aware of the void ness, fraud or error).
28
A Small Claims Court can also amend patent defects in a judgment in terms of section
36(1)(c) on condition that the application be brought not later than one year after the
applicant first became aware of the errors.
When a Small Claims Court gives a judgment, it may only award the following costs in terms
of section 37:
(a) court fees;
(b) the prescribed amount for issuing of the summons;
(c) the fees and travelling costs of the sheriff.
7.7 Review
The Small Claims Court is not a court of record, and it is not possible to appeal against a
judgment thereof. It is possible, however, to take a Small Claims Court decision on review
on the following grounds mentioned in section 46:
(a) lack of jurisdiction by the court;
(b) interest in the matter, prejudice, malice or corruption by the commissioner;
(c) gross irregularity with regard to the proceedings.
29
SPECIAL COURTS AND TRIBUNALS
8.1
The Children’s Court
The concept of the children’s court in the Children’s Act 38 of 2005 is established in
chapter 4 of the Act. For the purposes of this Act, every magistrate’s court, as
defined in the Magistrates’ Court Act 32 of 1944, shall be a children’s court and shall
have jurisdiction on any matter arising from the application of this Act for the area of
its jurisdiction.
A children’s court is a civil court and has a similar status as a magistrate’ court at
district level.
The children’s court that has jurisdiction in a particular matter is the court of the
geographical area in which the child involved in the matter is ordinarily resident.
A children’s court may adjudicate any matter, involving –
(a)
the protection and well-being of a child;
(b)
the care of, or contact with, a child;
(c)
paternity of a child;
(d)
support of a child;
(e)
the provision of-
30
(f)
(i)
early childhood development services; or
(ii)
prevention or early intervention services;
mal-treatment, abuse, neglect, degradation or exploitation of a child, except
criminal prosecutions in this regard;
(g)
the temporary safe care of a child;
(h)
alternative care of a child;
(i)
the adoption of a child, including an inter-country adoption;
(j)
a child and youth care centre, a partial care facility or a shelter or drop-in
centre, or
(k)
any other matter relating to the care, protection or well-being of a child
provided for in this Act.
Pending the establishment of family courts by an Act of Parliament, the High Courts
and Divorce Courts have exclusive jurisdiction over the following matters
contemplated in this Act:
(a)
The guardianship of a child;
(b)
The assignment, exercise, extension, restriction, suspension or termination of
guardianship in respect of a child;
(c)
Artificial fertilisation;
(d)
The departure, removal or abduction of a child from the Republic;
(e)
Applications requiring the return of a child to the Republic from abroad;
(f)
The age of majority or the contractual or legal capacity of a child;
(g)
The safeguarding of a child’s interest in property; and
(h)
Surrogate motherhood.
31
NOTE: Nothing in this Act shall be construed as limiting the inherent jurisdiction of
the High Court as upper guardian of all children.
The person who may approach a court, are:
(a)
A child who is affected by or involved in the matter to be adjudicated;
(b)
Anyone acting in the interest of the child;
(c)
Anyone acting on behalf of a child who cannot act in his or her own name;
(d)
Anyone acting as a member of, or in the interest of, a group or class of
children; and
(e)
Anyone acting in the public interest.
A person who is a party in a matter before a children’s court is entitled to appoint a
legal practitioner of his or her own choice and at his or her own expense.
32
8.2
Companies Act No 71 of 2008
The Companies Act No 71 of 2008 came into force on 1 May 2011 and provides for various
remedies to settle disputes. One can apply to Court, the Companies Tribunal, the
Companies and Intellectual Property Commission (CIPC) or the Takeover Regulation Panel
(TRP).
8.2.1 Statutory remedies
One or more shareholders, directors or prescribed officers of a company, or a trade
union representing the employees of the company, may apply to the High Court for
an appropriate order to restrain the company from doing anything inconsistent
with the Act. [Section 20(4)]
A securities holder of a company may apply to a court for –

a declaratory order determining any rights of the securities holder in terms of
the Act, the company’s MOI, or any rules of the company; or

any appropriate order necessary to –
-
protect any right; or
33
-
rectify any harm done to the securities holder by the company or any of its
directors as a consequence of an act or omission that contravened this Act or
the company’s MOI or rules, or violated any right. [Section 161]
A shareholder or director of a company may apply to a court for relief if –

any act or omission of the company, or a related person, has had a result that is
oppressive or unfairly prejudicial to, or unfairly disregards the interests of the
applicant;

the business of the company, or a related person, is being or has been carried on
or conducted in a manner that is oppressive or unfairly prejudicial to, or unfairly
disregards the interests of the applicant; or

the powers of the directors of the company, or a related person, are being or
have been exercised in a manner that is oppressive or unfairly prejudicial to, or
unfairly disregards the interests of the applicant. [Section 163(1)]
When considering an application, the court may make any interim or final order it thinks
fit, including an order –

restraining the conduct complained of;

appointing a liquidator, if the company appears to be insolvent;

an order placing the company under supervision and commencing business rescue
proceedings in terms of the Act;

regulating the company’s affairs by amending its MOI or creating or amending an
unanimous shareholders’ agreement;

directing an issue or exchange of shares;
34

appointing directors in place of, or in addition to the directors then in office;

directing the company or any other person to restore to a shareholder any part of
the consideration that the securities holder paid for shares;

varying or setting aside a transaction or contract to which the company is a party
and compensating the company or other party to the transaction or contract;

requiring the company to produce to the court or an interested person financial
statements in a form required by this Act;

person to compensation;

directing rectification of the registers or other records of a company; or

for the trial of any as determined by the court. [Section 163(2)]
8.2.2 Derivative actions
Shareholders, directors or prescribed officers of a company, or a trade union that
represents employees, or any person who has been granted the leave of the court to do so,
may serve a demand upon a company to commence or continue legal proceedings [Section
165].
8.2.3 Legal Costs
The Court may make any orders it considers appropriate about the costs of the following
persons in relation to the proceedings: [Section 165 (10)]

The person who applied for or was granted leave
35

The Company

Any other party to the proceedings or application
8.2.4 Companies Tribunal
The Companies Tribunal is established in Section 193 of the Companies Act, which—

has jurisdiction throughout the Republic;

is independent, and subject only to the Constitution and the law;

must exercise its functions in accordance with this Act; and

must perform its functions impartially and without fear, favour, or prejudice, and in
as transparent a manner as is appropriate having regard to the nature of the specific
function.
In carrying out its functions, the Companies Tribunal may—

have regard to international developments in the field of company law; or

consult any person, organisation or institution with regard to any matter.
The Companies Tribunal consists of a chairperson and not less than 10 other women or
men appointed by the Minister, on a full or part-time basis.
36
Functions of Companies Tribunal
The Companies Tribunal, or a member of the Tribunal acting alone in accordance with this
Act, may—

adjudicate in relation to any application that may be made to it in terms of this Act,
and make any order provided for in this Act in respect of such an application;

assist in the resolution of disputes. (Section 195)
Companies Tribunal adjudication procedures
The Companies Tribunal—

must conduct its adjudication proceedings contemplated in this Act expeditiously
and in accordance with the principles of natural justice; and

may conduct those proceedings informally. (Section 180)
If adjudication proceedings before the Tribunal are open to the public, the Tribunal may
exclude members of the public, or specific persons or categories of persons, from attending
the proceedings—

if evidence to be presented is confidential information, but only to the extent that
the information cannot otherwise be protected;

if the proper conduct of the hearing requires it; or

for any other reason that would be justifiable in civil proceedings in a High Court.
37
At the conclusion of adjudication proceedings, the presiding member must issue a decision
together with written reasons for the decision.
Right to participate in hearing
The following persons may participate in an adjudication hearing in terms of section 181, in
person or through a representative, and may put questions to witnesses and inspect any
books, documents or items presented at the hearing:

The Commission;

the applicant or complainant; and

any other person who has a material interest in the hearing, unless that interest is
adequately represented by another participant.
Powers of Tribunal adjudication hearing
The Companies Tribunal may—

direct or summon any person to appear at any specified time and place;

question any person under oath or affirmation;

summon or order any person—

to produce any book, document or item necessary for the purposes of the
hearing; or

to perform any other act in relation to this Act; and

give directions prohibiting or restricting the publication of any evidence given to
the Tribunal. (Section 182)
38
8.2.5 Companies and Intellectual Property Commission (CIPC)
A Companies and Intellectual Property Commission is established in terms of section 185 as
a juristic person to function as an organ of state within the public administration, but as an
institution outside the public service.
The Commission—

has jurisdiction throughout the Republic;

is independent, and subject only to—


the Constitution and the law; and

any policy statement, directive or request issued to it by the Minister in

terms of this Act;
must be impartial and perform its functions without fear, favour, or prejudice; and
must exercise the functions assigned to it in terms of this Act or any other law, or
by the Minister, in—

the most cost-efficient and effective manner; and

in accordance with the values and principles mentioned in section 195 of the
Constitution.
Any person may file a complaint with either the CIPC or Takeover Regulation Panel (TRP)
alleging that –

A person has acted in a manner inconsistent with the Act; or
39

That the complainant’s rights under the Act, or under a company’s MOI or rules
have been infringed. (section 168)
If the CIPC or TRP receives a complaint, it can –

Refuse to investigate because it is frivolous or vexatious;

Refer the complaint to the Companies Tribunal or accredited entity;

Direct an inspector or investigator to investigate the complaint. (section 169)
Functions of Commission (Section 187)
Other than with respect to matters within the jurisdiction of the Takeover Regulation Panel,
the Commission must enforce this Act, by, among other things,—

promoting voluntary resolution of disputes (section 166);

monitoring proper compliance with this Act;

receiving or initiating complaints concerning alleged contraventions of this Act,
evaluating those complaints, and initiating investigations into complaints;

ensuring that contraventions of this Act are promptly and properly investigated;

issuing and enforcing compliance notices;

referring alleged offences in terms of this Act to the National Prosecuting Authority;
and
40

referring matters to a court, and appearing before the court or the Companies
Tribunal, as permitted or required by this Act.
8.2.6 Dispute resolution
Complaints may be addressed in various ways such as –

Alternative dispute resolution to resolve disputes with or within a company;

Applying to the Companies Tribunal for adjudication;

Applying for appropriate relief to the division of the High Court that has jurisdiction;

Filing a complaint with either the Takeover Regulation Panel or the Companies and
Intellectual Properties Commission.
Reference:
Delport The New Companies Act Manual (2011) Lexisnexis
41
8.3
Competition Appeal Court
The Competition Act 98 of 1998 establishes a Competition Commission which is responsible
for the investigation, control and evaluation of restrictive practices, abuses of dominant
position and mergers. It also establishes a Competition Tribunal, which is responsible for
adjudicating such matters. Section 36 of the Competition Act further establishes a Competition
Appeal Court with a status similar to that of a High Court and which has jurisdiction
throughout the Republic of South Africa.
This court consists of at least three judges of the High Court, appointed by the President of
the Republic of South Africa on the advice of the Judicial Services Commission. The
Competition Appeal Court may review any decision of the Competition Tribunal or consider
an appeal against a decision of the Tribunal.
42
8.4
The Consumer Protection Act 68 of 2008
Commencement and implementation
The Consumer Protection Act (CPA) was signed by the State President on 24 April 2009
and was Gazetted on 29 April 2009. The Act was put into effect incrementally: Chapter 1
and 5 of the Act, as well as section 120 and any other provision authorising the Minister to
issue regulations, as well as Schedule 2, Came into operation on the “early effective date”,
which is one year after the President signed the Act and thus is 24 April 2010 [Item 2
Schedule 2]. The rest of the provisions of the Act came into operation on 31 March 2011
(the general effective date) and the regulations that were issued in terms of the Act were
published on 1 April 2011.
Section 61 of the Act which deals with strict product liability further also applies to any
goods that were first supplied to a consumer on or after the “early effective date” [Item
3(d) Schedule 2]. The CPA does not apply to the promotion of any goods or services prior
to the general effective date and also not to any transaction or agreement entered into or
any goods or services supplied to a consumer prior to the general effective date [Item 3(d)
Schedule 2].
National Consumer Commission
The Consumer Protection Act establishes the National Consumer Commission that serves
as primary institution that will enforce the Act in conjunction with specific matters what will
43
be dealt with by the National Consumer Tribunal (that has already been established in terms
of the National Credit Act 34 of 2005). The National Consumer Commission (NCC) is a
juristic body established in terms of the Consumer Protection Act. It is headed by a
Commissioner who is appointed by the Minister of Trade and Industry. Given the objectives
of the Act especially to improve the consumer rights of low income persons and to establish
an accessible system of redress, the Act also provides that consumers can approach other
institutions and persons, namely alternative dispute resolution agents, ombuds and
consumer courts and in some instances, equality courts, and it appears that the legislature
intended that civil courts can be approached as an option of last resort.
Consumer complaints
A complaint will comprise of an allegation that a consumer's rights in terms of the
Consumer Protection Act have been infringed, impaired or threatened; or that prohibited
conduct has occurred or is occurring. Such a complaint must be lodged in the prescribed
form.
Who Can Lodge a Complaint?
In terms of the CPA, any person to whom goods or services are marketed in the ordinary
course of a supplier's business; or any person who has entered into a transaction with a
supplier in the ordinary course of the supplier's business, can lodge a complaint with the
National Consumer Commission (NCC). Consumers include franchisees and businesses
that fall within the ambit of the threshold stipulated in the regulations.
44
The following categories of people can lodge complaints with the NCC:

persons acting on their own behalf;

an authorised person acting on behalf of another person who cannot act in their
own name;

a person acting as a member of, or in the interest of, a group or class of affected
persons;

a person acting in the public interest (in this instance such person can only lodge the
complaint with leave of the Tribunal or Court, as the case may be); and

an association acting in the interest of its members.
A person who lodges a complaint is referred to as the complainant, whereas the person
against whom the complaint is lodged is referred to as the respondent.
Against whom may a Complaint be lodged?
A complaint may be lodged against the following classes of people:

an individual,

a juristic person,

a partnership or trust,

an organ of state,

an entity owned or directed by an organ of state,

a person contracted or licensed by an organ of state to offer or supply any goods or
services,
45

a public private partnership in the ordinary course of business,

a club, trade union, association, society or other collective, whether corporate or
unincorporated, of persons voluntarily associated and organised for a common
purpose or purposes

a body or entity provided elsewhere in the Act.
Where the respondent's principal office is situated outside the country, the NCC still has
jurisdiction, provided that the prohibited conduct was committed within the Republic of
South Africa.
Types of matters that the NCC may deal with:
In terms of the CPA the NCC will have jurisdiction over the following matters:

Every transaction occurring within the Republic unless exempted.

The promotion or supply of any goods or services within the Republic unless those
goods or services have been exempted.

Goods or services supplied in terms of a transaction irrespective whether these are
offered or supplied in conjunction with any other goods or services or separate from
any goods or services. (for eg: X supplies a copier and X also agrees to service the
copier or X subcontracts the servicing)

If goods are supplied in terms of an exempt transaction as provided for in section 5
(5) of the Act, the importer, producer, distributor and retailer of those goods
respectively are still subject to sections 60 and 61. These sections relate to safety
monitoring and liability for damage caused by goods.
46

Goods or services that are subject to the National Credit Act. "whilst the NCC has
no jurisdiction over the credit agreement itself' it would still have deal with
contraventions arising from the goods or services that are the subject of the credit
agreement.
Franchise transactions irrespective of the value of the transaction in so far as the
following:

the solicitation of offers to enter a franchise agreement;

an offer by potential franchisor to enter into franchise agreement with potential
franchisee;

a franchise agreement or supplementary agreement to a franchise agreement

the supply of any goods or services to a franchisee in terms of a franchise agreement
The application of this Act extends to all matters irrespective of whether the
supplier:

resides or has their principal office in or outside the Republic

operates on a for-profit basis or otherwise

is an individual; juristic person; partnership; trust; organ of state; an entity owned/
directed by the State; a person contracted or licensed by an organ of State to offer
or supply any goods or services;

is a public- private partnership; or is required or licensed in terms of law to avail the
goods and services to the public.
The NCC CANNOT deal with transactions that are as follows:
47

Involving the promotion or supply of any goods or services outside the Republic;

Which are exempt;

Which relate to exempt goods or services;

Relating to goods and services promoted or supplied to the State;

Where the consumer is a juristic person whose asset value or annual turnover, at
the time of the transaction, equals or exceeds the threshold value of 2 Million Rand;

A credit agreement in terms of the National Credit Act;

Services that are supplied in terms of an employment contract;

Give effect to a collective bargaining or collective agreement in terms of the Labour
Relations Act.
The Enforcement of Consumer Rights
The final enforcement guidelines in order to give effect to the Act were published on 25 July
2011 (Gazette No 34484 – Notice 492). In order to enforce any right in terms of the CPA
(section 69), a transaction or agreement or if a consumer wishes to resolve any dispute with
a supplier, the consumer may:

refer the matter directly to the Tribunal, if such a direct referral is permitted by the
Act in the case of the particular dispute;

refer the matter to the applicable Ombud with jurisdiction, if the supplier is subject
to the jurisdiction of any such Ombud; or

if the matter is not in the jurisdiction of an Ombud then it may be referred to an
accredited [in terms of section 82 (6)] industry Ombud provided the supplier is
subject to the jurisdiction of that Ombud.
48

apply to the consumer court of the province with jurisdiction over the matter;

refer the matter to another alternative dispute resolution agent (section 70); or

file a complaint with the NCC in accordance with CPA (section 71)

approach a court with jurisdiction over the matter, if all other remedies available to
that person in terms of national legislation have been exhausted. (Of last resort)
What can the NCC do when a Complaint is received in Terms of the Consumer
Protection Act
When a complaint is received or initiated, the NCC may issue a notice of non-referral
where the complaint:
(i)
appears to be frivolous or vexatious;
(ii)
does not allege any facts which, if true, would constitute grounds for a
remedy under this Act; or
(iii)
is made more than three years after (a) the act or omission that is the cause
of the complaint; or (b) in the case of a course of conduct or continuing
practice, the date that the conduct or practice ceased. (iv) is against any
person that is, or has been, a respondent in proceedings under another
section of this Act relating substantially to the same conduct.
Or may refer the complaint to:
(i)
an alternative dispute resolution agent,
(ii)
a provincial consumer protection authority
49
(ii)
a provincial consumer court for the purposes of assisting the parties who
would be attempting to resolve the dispute in terms of Section 70 (ADR),
unless the parties have previously and unsuccessfully attempted to resolve
the dispute in that manner; The complaint may be referred to another
regulatory authority with jurisdiction over the matter for investigation.
The National Consumer Tribunal
The National Consumer Tribunal was created in terms of section 76 of the National Credit
Act 34 of 2005 and meets on an ad hoc basis to consider consumer matters that fall under
the National Credit Act and the Consumer Protection Act. The Tribunal is a juristic person
and has jurisdiction throughout South Africa. The following matters may be handled by the
Tribunal:
(a) If allowed by the Consumer Protection Act, a direct referral by a consumer regarding a
dispute with a supplier [section 69(a)].
(b) A referral by a consumer after the National Consumer Commission has issued a
compliance notice to the consumer (the Tribunal must however grant leave for such
referral) [section 75(1)(b)].
(c) An application to have a settlement reached by an alternative dispute resolution agent
made an order of the Tribunal [section 70(3)(a)].
(d) Referral from the National Consumer Commission where it is alleged that a person was
involved in prohibited conduct [section 73(2)(b)].
50
(e) A (review) application by a producer or importer regarding a recall notice or an
investigation notice by the National Consumer Commission regarding the safety of goods
[section 60(3)].
(f) A review application regarding cancellation of a business name [section 80(4)].
(g) An application that a matter as ordered by the National Consumer Commission or
requested by an applicant, be referred to the Tribunal instead of a consumer court [sections
73(4) and 75(2)].
A referral to the Tribunal must occur in the prescribed manner [section 75(3)]. After
receipt of a complaint the Tribunal must conduct a hearing of the matter in accordance with
the Act, which hearing must be inquisitorial, quick, informal and in accordance with the rules
of natural justice [section 142(1) of the National Credit Act]. The Tribunal may make any
appropriate orders contemplated in the Consumer Protection Act or sections 150 and 151
of the National Credit Act, for example the granting of temporary legal relief, declaring
specific conduct to constitute prohibited conduct, issuing of an interdict, imposition of
administrative penalties, confirmation of consent orders, condonation of non-compliance
with the Tribunal’s rules and any other order to give effect to a right of the consumer.
Failure to comply with an order of the Tribunal is an offence for which a fine or
imprisonment of maximum 10 years or both, may be imposed [section 160 read with
section 161 of the National Credit Act]. Appeal against a decision of the Tribunal may be
made to a full panel of the Tribunal [section 148(1) of the National Credit Act]. Where a
full panel of the Tribunal has however given a decision, appeal must be noted to a High
Court [section 148(2) of the National Credit Act].
Alternative Dispute Resolution Agents
51
The following entities qualify as dispute resolution agents for purposes of the Consumer
Protection Act:
(a) an ombud with jurisdiction in respect of the supplier;
(b) an accredited industry ombud with jurisdiction in respect of the supplier;
(c) a person or entity that provides conciliation, mediation or arbitration services to assist
with the resolution of consumer disputes (except an ombud with jurisdiction or an
accredited industry ombud);
(d) the consumer court of the province that has jurisdiction in respect of that matter, if
there is such a consumer court [section 70(1)].
If an alternative dispute resolution agent concludes that there is no reasonable probability of
the parties resolving their dispute through the process provided for, the agent may
terminate the process by notice to the parties, whereafter the party who referred the
matter to the agent may file a complaint with the Commission in accordance with section 71
[section 70(2)]. If the agent resolved the dispute, the agent may record the resolution of
that dispute in the form of an order and if the parties agree, submit such order to the
Tribunal or the High Court to be made a consent order, which may include damages
[section 70(3) and (4)].
Jurisdiction of equality court
An accredited consumer protection group or any person contemplated in section 20(1) of
the Promotion of Equality and Prevention of Unfair Discrimination Act may either institute
52
proceedings in respect of an alleged contravention of Part A of Chapter 2 before an equality
court or file a complaint with the National Consumer Commission, which must refer the
complaint to the equality court if it appears to be valid [Section 10(1)].
53
8.5
Courts of Chiefs and Headmen (Traditional Leaders Courts)
Item 16(1) of Schedule 6 of the final Constitution generally provides for the courts of
traditional leaders to continue to function and to exercise jurisdiction in terms of the applicable
legislation.
Section 12 of the Black Administration Act 38 of 1927 provides that chiefs and headmen may
be authorised to hear and determine civil claims arising out of statutory, indigenous and other
customary law.
Section 20 of the same Act confers authority upon any chief or headman to try at a hearing and
to punish any tribal person who has committed certain specified offences in the area under the
control of the chief or headman. In terms of section 12(4), appeals against a judgment granted
in terms of these provisions lies to the Magistrates’ Courts.
54
8.6
Electoral Court
Section 18 of the Electoral Act establishes an Electoral Court for the Republic of South Africa,
with the status of a High Court.
The Electoral court may review any decision of the Electoral Commission relating to an
electoral matter, and it may hear certain appeals against decisions of the Electoral Commission.
The court consists of a judge of the Supreme Court of Appeal and two High Court judges plus
two other members who are South African citizens.
55
8.7
Equality Court
Section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
provides that every Magistrate’s Court and every High Court is also an Equality Court in the
area of its jurisdiction.
The Equality Court is a specialised court established to deal with complaints of unfair
discrimination. This is the first direct constitutional jurisdiction to be awarded to the
Magistrates’ Courts.
A judge or magistrate must be designated as an Equality Court presiding officer before he or
she may sit in such a court, but this can occur only after he or she has received special training.
The Act provides for the designation of clerks of the Equality Court. Clerks play an important
role in assisting applicants to prepare applications. The Act provides a user-friendly application
procedure in order to make the court accessible. The judicial officer first becomes involved
when a “directions hearing” is held, at which the judicial officer must give a direction as to the
way in which the matter should proceed. The hearing on the merits is of an inquisitorial nature,
which enables the judicial officer to control the proceedings effectively.
56
8.8
Housing Rental Tribunal
The Rental Housing Tribunal was established by the Rental Housing Act 50 of 1999. The
Tribunal is a quasi-judicial body, which serves a regulatory function in that it sets out
guidelines which have to be followed when parties enter into a rental agreement. The
Tribunal is vested with rights, as accorded to it by the Rental Housing Act 50 of 1999 and
the Unfair Practices Regulations promulgated thereto. The Tribunal aims to provide
accessible mechanisms to landlords and tenants, which will enable them to resolve their
disputes and to protect landlords and tenants against unfair practices.
The Tribunal handles the following matters;
 Non-refund of deposits
 Problems that arise due to leases that are not in full compliance with the law
 Non-payment of rent
 Harassment and intimidation
 Eviction without a court order and lock outs
 Lack of maintenance to the dwelling
 Overcrowding
 Exploitative rent and service charges
 House rules
 The issuing of receipts for rent payments
 Service cut-offs without a court order
57
8.9
Special Income Tax Court
Section 83 of the Income Tax Act 58 of 1962 provides for the constitution of a special court
for the hearing of income tax appeals by persons dissatisfied with decisions made by the
commissioner for the South African Revenue Service.
The President of the Republic of South Africa constitutes these courts by proclamation as the
circumstances require. Proceedings are commenced by a notice of appeal served on the
commissioner within the time period specified in section 83(7) of the Act.
The court is composed of a judge or acting judge of the High Court, an accountant of not less
than ten years’ standing and a representative of the commercial business community.
58
8.10
Land Claims Court
The Land Claims Court was established in 1996 in terms of section 22 of the Restitution of
Land Rights Act 22 of 1994. It has the same status as a High Court and has exclusive
jurisdiction to determine, inter alia, a right to restitution of any land in accordance with the Act,
to determine issues of compensation in respect of the appropriation or acquisition of such
land, to determine title to such land and to determine whether compensation received at the
time of dispossession of land was just and equitable. It also has exclusive jurisdiction to
determine matters involving the interpretation or application of the Land Reform (Labour
Tenants) Act 3 of 1996, and the Extension of Security of Tenure Act 62 of 1997. Appeals from
this Court lie to the Supreme Court of Appeal and in appropriate cases to the Constitutional
Court.
The President and additional judges of the court were initially appointed for a fixed term of five
years. In 2000 a new section 26A was inserted into the Act to provide for the secondment of
judges of the High Court and the appointment of acting judges to the Land Claims Court. This
has enabled the Court to continue to function after expiry of the initial fixed-term
appointments of judicial officers and without the appointment of further judicial officers fully
dedicated to this Court.
The Land Claims Court has its own rules. Its procedures are more flexible than those of the
High Court, allowing it to conduct proceedings on an informal or inquisitorial basis. It has its
seat in Randburg, but may convene in any part of the country to promote accessibility.
59
8.11
Labour Courts
Section 151 of the Labour Relations Act 66 of 1995 establishes a Labour Court, having the
same authority, powers and standing as a High Court in relation to matters under its
jurisdiction. The Labour Court has jurisdiction in all the provinces of South Africa and may
perform its duties at any place within the Republic. It has exclusive jurisdiction in respect of all
matters in terms of the Labour Relations Act or any other law relevant to the Labour Court.
These include matters arising in terms of the Basic Conditions of Employment Act 75 of 1997,
the Unemployment Insurance Act 30 of 1966, the Skills Development Act 97 of 1998, the
Employment Equity Act 55 of 1998, the Occupational Health and Safety Act 85 of 1993, and
the Compensation for Occupational Injuries and Diseases Act 130 of 1993. The Labour Court
has its own rules of procedure and may, in terms of section 157(4)(a), refuse to adjudicate on a
dispute if it is not satisfied that an attempt has been made to resolve the dispute through
reconciliation.
Section 167 of the Labour Relations Act establishes a Labour Appeal Court as the final court of
appeal in respect of all judgments and orders made by the Labour Court regarding matters
within its exclusive jurisdiction. The Labour Appeal Court has a status equal to that of the
Supreme Court of Appeal in relation to matters within its jurisdiction.
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8.12
Maintenance Court
A special Maintenance Court was first established in 1963 by the Maintenance Act 23 of
1963, which provided that every Magistrate’s Court is, within its area of jurisdiction, also a
Maintenance Court for the purposes of the Act.
The present Maintenance Act 99 of 1998 retains this special court at District Court level
and provides procedures designed to assist applicants to obtain and enforce maintenance
orders.
Ideally, a Maintenance Court should be part of a Family Court structure designed to deal in
an holistic way with divorce, maintenance, domestic violence and issues concerning the
welfare of children.
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