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Superior Courts

Basically, the court system in South Africa works in the following way. First, broadly speaking, there are two kinds of legal cases that could go to court: either it is for a criminal charge, or it is for a non-criminal matter (a divorce, or a money claim, say) and which is called a ‘civil’ case. Then, both the criminal courts and the civil courts have a different ranking – from another perspective, what is called jurisdiction.

So, minor crimes are tried in Magistrates’ Courts, presided over by a magistrate. More serious crimes, like murder for example, are tried in the High Court which is presided over by a judge. There is a parallel with civil cases, because a magistrate only has the power or jurisdiction to hear civil cases of up to a certain value as well as certain other civil disputes; the High Court, on the other hand, can decide cases of any value and any civil dispute.

The Supreme Court of Appeal (which sits in Bloemfontein) only hears appeals. The Constitutional Court (which sits in Johannesburg) only hears cases concerning constitutional issues and then, mostly, only appeals.

The Superior Courts Act 2013 provides for the administration and functioning of the courts. It falls under the auspices of the Minister of Justice. Given that one purpose of the courts is to try criminal offences committed by the public, there is not much in the Act which creates offences. However, there are some important provisions to bear in mind.

A. Witnesses and attendance at court

  1. If you have been served with a subpoena, either to attend court proceedings as a witness or to produce a document or thing in your possession, you commit a criminal offence if you disobey the subpoena without a reasonable excuse.1

  2. The same applies if the proceedings are referred to an enquiry by a ‘referee’. This can happen, basically, where any matter requires particular investigation of a scientific or technical nature. If you disobey the subpoena, you commit an offence.2

  3. You also commit an offence if, in proceedings before the referee, you:
    • fail to remain in attendance;3
    • refuse to take the oath or make an affirmation;4
    • fail to answer any question fully and satisfactorily;5 or
    • fail to produce the document or thing referred to in the subpoena.6

  4. The same applies to the hearing of evidence by way of interrogatories. If you have been summoned to the interrogatory and, without reasonable excuse, fail to appear, you commit an offence.7

  5. The court can direct that you be arrested and brought to court, with a view to securing either your presence as a witness, or the production of the document or thing. It can release you from the proceedings, on your ‘recognisance’ (a formal undertaking recorded by the court, usually with conditions – like bail8) that you will in due course attend, as a witness, or to produce the document or thing in question. If you then fail to do so, you commit a crime (and you forfeit the recognisance).9

  6. The same applies to a person arrested in order to appear in or to answer any civil proceedings. The judge can order the person to attend the further proceedings, and it is an offence not to comply with the order.10

  7. Any person who gives evidence (after he has taken the oath, or made an affirmation) which he knows to be false, or which he does not believe to be true, commits an offence.11

B. The Sheriff

The Sheriff of the High Court (including his deputy) is the official responsible for giving effect to the processes of court – serving summons and subpoenas, attaching and selling property in execution of a writ, and so forth.

  1. Any person who obstructs the sheriff in the execution of his duty commits an offence.12

  2. If you are aware that goods are under arrest, interdict or attachment by the High Court, and you destroy or, without lawful justification, dispose of those goods (or knowingly permit those goods to be destroyed or disposed of) you commit an offence.13

  3. If you are a judgment debtor, and are required by the sheriff to point out property in order to satisfy the judgment against you, it is a criminal offence:
    • falsely to declare that you possess no property, or insufficient property to satisfy the warrant; or
    • although knowing of such property, to neglect or refuse to point it out, or deliver it to the sheriff when requested to do so.14
  4. If you are a judgment debtor, and you refuse or neglect to comply with any requirement of the sheriff in regard to the delivery of documents relating to the title of immovable property which is under execution, you commit an offence.15

  1. Section 35(4). ↩

  2. Section 38(5)a. ↩

  3. Section 38(5)(a)ii. ↩

  4. Section 38(5)(a)iii. ↩

  5. Section 38(5)(a)iv. ↩

  6. Section 38(5)(a)iv. ↩

  7. Section 39(5). ↩

  8. Section 35(4). ↩

  9. Section 35(50. ↩

  10. Section 44(3)(c) read with section 44(2). ↩

  11. Section 38(5)(h). ↩

  12. Section 46(a). ↩

  13. Section 46(b). ↩

  14. Section 46(c). ↩

  15. Section 46(d). ↩

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