Introduction to legal concepts B

1. Introduction to legal concepts B 2019 Certificate in Forensic Investigation Techniques, Monday 26 August 2019

2. Introduction to legal concepts • Introduction to Public Law • The Court System • The Constitution & the Bill of Rights

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4. PART 1: Introduction to Public Law

5. Categories of law • The legal field is diverse, and we have laws in many fields, but the legal topics are broken down into certain broad subjects i.e. Public law vs Private law • The subjects within public law are: Constitutional Law, Administrative Law, Criminal Law, Labour Law, International Law, etc. • The subjects within private law are: the Law of Property; the Law of Companies; the Law of Insolvency; Competition Law; Contract Law; Delict and Banking Law as examples.

6. Categories of law – Public Law • The subjects within public law are: • Constitutional Law • Administrative Law • Criminal Law • Labour Law • International Law • Human Rights Law?

7. We have spoken about liability, but what is the point of holding someone liable? Shouldn’t we just forgive and forget? • What is the point of suing someone for damages if they committed a delict against you? • What is the point of imprisoning someone? Why don’t we just let their parents or community handle transgression?

8. Civil vs criminal: • There is a distinction drawn between civil and criminal trials regarding: • their object, • the initiating party, • the standard of proof required, • and the remedy granted.

9. Civil vs criminal: • In criminal trials the object is to seek retribution for and protect society against those alleged to have transgressed the law. • In civil trials the object is to resolve a dispute between two or more parties who stand on an equal footing in relation to each other.

10. Civil vs criminal: • Where the state is successful in the criminal trial, the accused will be convicted + sentenced / penalized – i.e. imprisoned, house arrest, fine. • When a person (the plaintiff) is successful in a civil trial, damages and/or performance will be awarded. Costs will also be awarded.

11. Civil vs criminal: The Criminal trial: • the initiating party in a criminal trial is the State, and the responding party is the accused: • S v Pistorius 2014 JDR 2127 (GP) • A crime will always involve a transgression against a particular person or group of persons: • In the case of S v Pistorius the victim of the crime was Reeva Steenkamp (deceased).

12. Civil vs criminal: The Criminal trial: • The complainant (victim) usually reports the crime, but as in the above case this could not have occurred. • Why do you think the state prosecuted Oscar despite there being no complainant from the victim?

13. Civil vs criminal: The Criminal trial: • After the investigation of the incident has taken place, the matter is referred to the National Directorate of Public Prosecutions, who will then decide whether they have sufficient evidence to pursue the case.

14. Civil vs criminal: The Criminal trial: • The accused will either be held in custody, or will be summoned to court for the day of his first hearing. From here, the matter proceeds, and prosecution will set various dates by which they will need evidence, and finally when the trial will begin. • During the criminal matter, the state is required to prove the accused’s guilt beyond a reasonable doubt. • What does this mean?

15. Civil vs criminal: The Criminal trial: • During the trial, the accused’s guilt will be established through the use of evidence which will be produced by both sides. • The trial is essentially to prove the ‘merits’ of the charge against the accused, and then moves to sentencing should the charge be successfully proved.

16. Civil vs criminal: The Civil trial: The different types of civil trial: There are two main forms in which you can start a matter: • Action proceedings – where a dispute involves disputes of fact, and or questions of law. • Basically where evidence needs to be proved in order to prove your claim. • Motion proceedings – in these matters there is no dispute of fact, and only questions of law to be dealt with. • Disciplinary proceedings?

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18. PART 2: The court system

23. The court system • The court system in South Africa is hierarchical with the Constitutional Court and Supreme Court of Appeal at the apex. • Section 34 of the Bill of Rights in our Constitution says everyone has the right to have any legal problem or case decided by a court or an independent body. • The ability of each court to inquire into and decide upon a matter is termed it’s jurisdiction, and this is limited by certain factors.

24. Jurisdiction: • A court is restricted by certain factors which limit the ability of the court to hear a matter. • The jurisdiction of a court is determined by the following factors: • Authority to hear constitutional matters: not allowed in magistrate’s court, usually start in the HC, and follow path upward by use of appeals.

25. Jurisdiction: • The jurisdiction of a court is determined by the following factors: • Geographical territory: CC and SCA have national Jurisdiction, whereas other courts are restricted to certain geographical locations. • Amount of claim in civil proceedings: magistrate’s court is usually limited to claims of R200 000.00, whereas claims in the High court have no such limit. The Small claims court has a limit of R15 000.00 (increases regularly).

26. Jurisdiction: • The jurisdiction of a court is determined by the following factors: • Severity of sentence in criminal proceedings: magistrate’s court cannot impose a fine exceeding R120 000.00 or a sentence over 3 years. The Regional Magistrate’s court cannot impose a fine exceeding R600 000.00 or a sentence exceeding fifteen years. Matters out of the reach of the MC or RC are handled by the HC.

27. Jurisdiction: • The jurisdiction of a court is determined by the following factors: • Nature of the proceedings: A magistrate’s court cannot hear certain criminal and civil matters. A regional court cannot hear matters which affect the status of natural persons (however, this has recently been updated: RC’s can hear divorces). • Appeal jurisdiction: magistrate’s courts have no appeal jurisdiction. High courts are courts of appeal for magistrate’s courts.

30. The Constitutional Court: • The Constitutional Court is in Braamfontein, Johannesburg and it is the highest court in South Africa. It only deals with constitutional issues. • There are 11 Constitutional Court judges but cases only need to be heard by 8 of them. • No other court can change a judgment of the Constitutional Court. If the Constitutional Court makes a decision that says a law must be amended or it cannot be passed because it is unconstitutional, Parliament can decide to change the law in order to make it constitutional.

31. The SCA: • The Supreme Court of Appeal is in Bloemfontein in the Free State. Except for the Constitutional Court, this is the highest court in South Africa. It only hears APPEALS from the High Court. • All cases in the Supreme Court are heard by three or five judges. • Except for the Constitutional Court, no other court can change a judgment of the Supreme Court of Appeal. Only the Supreme Court of Appeal can change one of its own decisions. But if parliament does not like the way the Supreme Court of Appeal  interprets a law, then parliament can change that law (if the majority vote for this).

32. The High Courts: • The High Courts can hear any type of criminal or civil case. The High Courts usually hear all the cases that are too serious for a Magistrate's Court. It also hears appeals and reviews against judgments in the Magistrate's Court. • Cases in the High Courts cost more money. • All cases in the High Courts are heard by judges. In civil cases usually only one judge hears the case. But if the case is on appeal then at least two judges must hear the case.

33. In criminal cases only one judge hears the case. • Sometimes in very serious criminal cases the judge appoints two assessors to help a judge. Assessors are usually advocates or retired magistrates. They sit with the judge during the court case and listen to all the evidence presented to the court. At the end of the court case they give the judge their opinion. • The judge does not have to adhere to the assessors' opinions, but it usually helps the judge to make a decision.

34. Magistrate’s Courts: • These are the lower courts that deal with the less serious criminal and civil cases. • The Regional Magistrate’s courts deal with both civil and criminal matters and have recently been given jurisdiction to deal with divorce cases. The District Magistrate’s courts deal with criminal and civil cases. • The magistrate makes the decisions in a Magistrate's Court sometimes on the advice of assessors.

35. Most magistrate’s courts can hear Equality Court cases. These are cases where you feel you have been discriminated against or harassed or subject to hate speech. • Magistrate's Courts can be divided into either criminal courts or civil courts.

36. Small Claims Court: • https://youtu.be/yvWjvZm1RfI

37. Small Claims Court: • SCCs are situated in the magistrate’s courts. If there is no SCC in your area, you must bring your case in the Magistrate’s Court. • A Commissioner presides over the proceedings and decides who is right and who is wrong. • The SCC is easier and cheaper for people to use to settle disputes. The court charges a small fee to cover the cost of the summons and the fee of the Sheriff of the Court.

38. You cannot use legal representation in the SCC (be represented by one) but you can get advice from a paralegal or an attorney to prepare for your case in the SCC. • Further, a juristic person cannot use the SCC. • You can only use the SCC for claims up to a value of R 15 000. If you claim is for more than R15 000 you can give up part of the claim so that it is R15 000 or less. 

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40. PART 3: The constitution & the bill of rights

41. The Constitution • The Constitution is the supreme law of the land, and prevails over all other laws. • https://youtu.be/0UzKD8rZCc0

42. The Constitution • The Constitution is made up of fourteen chapters. • The chapters deal with human rights, the structure of the state, powers of the institutions, administration of justice, etc. • The document guides the entirety of our political and legal endeavors.

43. Chapter 2 sets out the Bill of Rights to be promoted, and the limitations clause limits their use. • Rights range from: • The right to life. • The right dignity. • The right to equality. • Privacy • Freedom of expression. • Political rights. • Citizenship. • Health care, food, water and social security. • Access to Courts.

44. Section 36 is responsible for the limitation of any rights contained in the Bill of Rights. • These rights may only be limited by a law of general application, which is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. • What would happen if parliament tried to pass laws which re-enacted the group areas? • What if a law was passed which required that all citizens were required to get married in a church? What right would that infringe?

46. Bill of Rights, Section 14 - Privacy • 14. Everyone has the right to privacy, which includes the right not to have— • (a) their person or home searched; • (b) their property searched; • (c) their possessions seized; or • (d) the privacy of their communications infringed.

47. Bill of Rights, Section 35 - Arrested, detained and accused persons • 35. (1) Everyone who is arrested for allegedly committing an offence has the right— • (a) to remain silent; • (b) to be informed promptly—(i) of the right to remain silent; and (ii) of the consequences of not remaining silent; • (c) not to be compelled to make any confession or admission that could be used in evidence against that person;

48. Bill of Rights, Section 35 - Arrested, detained and accused persons • 35. (1) Everyone who is arrested for allegedly committing an offence has the right— • (d) to be brought before a court as soon as reasonably possible, but not later than— (i) 48 hours after the arrest; or (ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

49. Bill of Rights, Section 35 - Arrested, detained and accused persons • 35. (1) Everyone who is arrested for allegedly committing an offence has the right— • (e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and • (f) to be released from detention if the interests of justice permit, subject to reasonable conditions.

50. Bill of Rights, Section 35 - Arrested, detained and accused persons • (2) Everyone who is detained, including every sentenced prisoner, has the right— • (a) to be informed promptly of the reason for being detained; • (b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;