In terms of the 1993 Constitution, legislative authority is vested in Parliament. The Constitution is the supreme law of the country and binds all legislative, executive and judicial organs of state at all levels of government. The courts are independent, impartial and subject only to the Constitution and the law.
This is the highest court in cases regarding the interpretation, protection and enforcement of the Constitution. It is therefore an appeal court and also acts as the guardian of the 1993 Constitution.
The Appellate Division shares the position of the highest court in the country with the Constitutional Court. The Appellate Division has jurisdiction to hear and determine an appeal against any decision of the court of a provincial or local division. The 10 provincial divisions hear matters that are of such a serious nature that the magistrate's courts would not be competent to impose an appropriate penalty. The Criminal Law Amendment Act of 1990 abolished the compulsory imposition of the death penalty. On 27 March 1992 the execution of death sentences were suspended and on 6 June 1995, the Constitutional Court declared the death penalty unconstitutional.
Each magisterial district is under the control of a magistrate who is responsible for aspects of state administration within his/her district. A magistrate's court has jurisdiction over all offences except treason, murder and rape. The regional court has jurisdiction over all offences except treason.
A maintenance court, which is a specialist section of the magistrate's court, enforces maintenance orders originating in South Africa or in other countries designated for this purpose by the President.
The Short Process Courts and Mediation in Certain Civil Cases Act, 1991 (Act 103 of 1991) ensure access to legal services and keep the cost of litigation down while speeding up the resolution of civil cases.
The small claims court has jurisdiction in certain small civil claims of up to R3000 in value. The presiding officer is a commissioner who is appointed from the legal profession and renders his/her services free of charge. No legal representation is allowed.
An authorised African headman or his deputy may hear and determine civil claims arising from indigenous law and custom, and brought before him by an African against another African within his area of jurisdiction. In terms of statutory law, jurisdiction may be conferred upon a chief or his deputy to try and to punish an African person who has committed an offence under common law and custom, with the exception of certain serious offences specified in the relevant legislation. An appeal against a judgment of a chief's court is heard in a magistrate's court.
The Office for Serious Economic Offences (OSEO) is a single coordinating body which is responsible for the effective and expeditious investigation of serious economic offences.
Section 30 of the 1993 Constitution deals with the rights of all children. The Government is continually striving towards bringing South Africa's standards in respect of children in line with those of democratic countries. In this regard the United Nations Convention on the Rights of the Child was signed in 1993 and ratified on 16 June 1995.
Children in detention is a matter of grave concern to the Government, and attempts are under way to empty the prisons of children and to place them in suitable alternative care. The prevention of Family violence Act, 1993 (Act 133 of 1993) places an obligation on any person who suspects that a child is being ill treated to report such suspicions. Specialist rape and child molestation courts were also instituted in several centres in the country.
Family advocates are charged with the duty of assisting the Supreme Court in divorce actions involving the interests of minor children, and in applications for the variation, rescission or suspension of an existing divorce order with regard to the custody over, guardianship of, or access to a child.
The legal profession consists of the Bar (advocates) and the side Bar (attorney profession). Advocates are not directly engaged by litigants, but are briefed by an attorney. An attorney gives legal advice to clients and also advises them on various other matters. The attorney may also be qualified to act as a notary or a conveyancer who prepares deeds of transfer and certificates of title.
Attorneys-General are in charge of instituting prosecutions on behalf of the State in criminal proceedings in their respective areas of jurisdiction. State attorneys render certain legal services to the State. The State Legal Advisers from a branch in the Department of Justice and furnish the various government departments and provincial administrations with legal advice and draft Bills to be presented to Parliament. State Advocates are employed as prosecutors in the courts.
The Legal Aid Board provides legal aid to indigent persons. Free legal aid is also offered by the advice centres and legal aid clinics of some universities. A Public Defender's Office has also been introduced to broaden the base of legal representation for the public. An official of the Department of Justice acts as a prisoner's friend at each of the larger magistrate's courts. In the larger magisterial districts, officials of the Department of Justice are appointed witness' friends in order to assist witnesses who have to appear in court.
The National Institute for Crime Prevention and Rehabilitation of Offenders (Nicro) is a welfare organisation aimed at preventing crime and at rehabilitating offenders.
The South African Law Commission does research on South African law and recommends measures of reform to suit changing circumstances.
Fundamental rights are an essential element of the democratic order created in terms of Chapter 3 of the 1993 Constitution. These rights bind all legislative and executive bodies of state at all levels of government. They apply to all laws, administrative decisions taken and acts performed during the period in which the Constitution is in force.
The Public Protector investigates accusations of unethical conduct in the handling of state or public funds. His/her major task is, however, to protect the ordinary citizen against maladministration and improper prejudice resulting from government decisions. The Public Protector also acts as a mediator and tries to achieve settlement between an aggrieved party and the Government.
The 1993 Constitution makes provision for a Human Rights Commission. The aim of the commission will be the protection, promotion and implementation of fundamental rights. It may also decide to investigate complaints regarding the alleged transgression of fundamental rights.
The establishment of a Commission of Truth and Reconciliation is in progress. The objectives of the commission will be to establish as complete a picture as possible of gross human rights violations relating to the conflicts of the past; to recommend reparation measures to restore victims' human and civil dignity; to receive applications for amnesty and indemnity and make recommendations to the President, and to gather information to make it possible to identify victims and determine their whereabouts or fate. A pre-selection procedure which will allow public nominations for appointment to the Truth Commission , was announced by President Mandela in September 1995.
The Department of Correctional Services promotes order, stability and security in the community by ensuring the safe custody of those persons entrusted to its cae. The department's goal is to provide opportunities, facilities, services and conditions conducive to the rehabilitation of offenders.
In 1994, a White Paper on the policy of the de[department was tabled in Parliament. The White Paper on Reconstruction and Development also highlighted certain policy aspects of the department such as the humane treatment of prisoners and creating a climate which is conducive to rehabilitation.
In a bid to keep unconvicted children out of prison the Correctional
Services Act, 1959 (Act 8 of 1959) was amended. The amendment
entails that no unconvicted child who is 14 years may be detained
in a prison for longer than 24 hours and an unconvicted child
who is 14 years and older but under the age of 18 years may be
detained in prison for a period not exceeding 48 hours. The department
recognises the responsibility involved in the incarceration of
juveniles and is committed to dealing with this reality with a
great deal of sensitivity and circumspection. In order to cater
for the specific needs of juveniles, the department is committed
to establishing at least one Youth Development Centre in each
of the nine provinces.
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