Going to court may seem like a scary experience especially when you are alone. When faced with a problem which you cannot resolve without legal assistance you are welcome to arrange a consultation with Faure and Faure Inc.
The right to legal representation
In terms of section 9 of the Constitution of the Republic of South Africa, 1996, everyone has the right to equal protection and benefit of the law. Even though this right belongs to everyone, legal services are not always affordable.
Legal aid is an organisation which is funded by the state, They provide free legal services to persons who need and cannot afford it. Their website can be found by searching: legal-aid.co.za
The legal practice council also provides free services in which appointed attorneys and advocates assist individuals. Their website can be found by searching: lpc.org.za/members-of-the-public/
Law firms also provide pro bono services, as part of its obligations in terms of the Legal Practice Act, to persons who require legal representation.
Litigation means the act, process, or practice of settling a dispute in a court of law. Taking legal action is starting a lawsuit against someone using the assistance of an attorney and/or advocate.
The act of litigation usually takes place in a court room. This is where the parties appear before a magistrate or judge.
Magistrate’s preside over matters that fall within the jurisdiction of the Magistrate’s Court and Judges preside over matters that fall within the jurisdiction of the higher Courts.
The difference between a judge and a magistrate
The difference between a judge and a magistrate is that the magistrate is a creature of statute and is limited by what the statutes say. This means that the magistrate can only do what he/she is given power to do. It cannot do or award more than what he/she is empowered to.
A judge has inherent jurisdiction meaning that it is empowered to do whatever it wishes as long as it does not do anything that is prohibited by statutes (law).
Jurisdiction means the power to hear a matter and the power to make decisions and give judgment in respect of a matter. A court has jurisdiction if:
- The matter takes place within its geographical area.
- If the parties in the matter are domiciled within the courts geographical area.
- If the amount/value sued for falls within its monetary limit.
The monetary limits are as follows:
If the matter is a civil matter and the amount sued for is R 15 000.00 or less the matter falls within the jurisdiction of the Small Claims Court’s.
View a video on the Small Claims Court by Faure & Faure Inc. Director, Lloyd Fortuin.
data:image/gif;base64,R0lGODlhAQABAAAAACH5BAEKAAEALAAAAAABAAEAAAICTAEAOw==Small Claims Court | Director, Lloyd Fortuin.
If the matter is a Criminal matter and the value is R 200 000.00 or less the matter falls within the District Magistrate’s Court
If it is a Civil matter and the value is between R 200 000.00 and R 400 000.00 the matter falls within the jurisdiction of the Regional Magistrate’s Court.
If the value is more than R 400 000.00 the matter falls within the jurisdiction of the High Court.
Click here to read more.
How do the courts differ?
The High Court can hear both Civil and Criminal matters.
The High Court can act as a court of first instance when a matter is heard for the first time without going to the lower court or it can act as a court of appeal when the matter was heard and judgement given in the lower courts.
The Supreme Court of Appeal is a court that hears appeals only which means it is never a court of first instance, in other words you cannot go to this court directly. You must go to the lower courts first and then if you are granted leave to appeal you may take it to the Supreme Court of Appeal.
The Constitutional Court is a court that only hears matters dealing with constitutional matters however this court has the power to hear other matters in exceptional circumstances.
When at court
When you arrive at the courthouse do your best to obey all rules and procedures, for example, wait in line and fill in all documents expected of you. When it is your turn, walk through the metal detector machine, sanitize your hands, and allow them to conduct a temperature scan. Once this is done and if all is in order you will be allowed to enter the rest of the building.
The next thing you should do is inform your legal representative that you have arrived and inform them where to find you.
If you do not have a legal representative, you should check the notices on the walls known as the court roll. Check for your name and case number to find out which court will be hearing your matter.
There are normally many courtrooms in each courthouse/court building, and they are marked Court A to Court F. Once you know which courtroom will be hearing your matter, wait outside that courtroom, for the court orderly to call your name.
Make sure your phone is switched off or put on silent before entering the court room. Do not take calls or play with your phone during court proceedings.
Once your name is called enter the court room and stand in the witness box. If you are unsure of where to stand, ask the court officials and they will direct you.
When speaking to a magistrate always address him or her as “Your Worship”. When speaking to a Judge always address him as “My Lord” or her as “My Lady”.
Whenever speaking or being spoken to in court always conduct yourself with proper manners and etiquette. Always stand when the Magistrate or Judge enters or leaves the court room. Always stand when speaking. Speak correctly, clearly and with respect. Wait for permission to speak or sit. Answer questions honestly. Do not make loud outbursts or interruptions. Always ask for permission before approaching the bench or handing up documents.
When appearing in court always dress neatly and formally this will make a good impression and show the magistrate that you take these proceedings seriously and are acting with respect.
The outcome of your matter
Once all the arguments are made and evidence has been evaluated the magistrate or judge will reach a decision. This decision is known as the judgement. Do not react badly if you are unhappy about the judgement. Even if you do not get the result you want act courteously and respectfully. Inform your legal representative that you would like to apply for appeal or review if possible.
We hope that after reading the above the experience of going to court does not seem so terrifying. Remember that the best way to prepare is to study up on the problem or situation. It is better to be over prepared than to be under-prepared. Luckily in this brave new world all your questions and answers can be found on the internet or your public library. When in doubt do not be afraid to ask for help. Try to prepare for the worst while at the same time expect the best. A positive mind set can carry you through the worst of situations. Remember that things are hardly ever as bad as they seem and no matter how bad a situation, it cannot last forever.
Article by Chelse Petersen, Candidate Attorney at Faure & Faure Inc.