Courts

The Constitution of South Africa Act 108 of 1996 established the following courts in South Africa — The Constitutional Court, the Supreme Court of Appeals, the High Courts, the Magistrate’s Courts and any other court established or recognized in terms of an act of parliament.

The judicial authority of the Republic of South Africa is vested in these courts which are independent and impartial and subject to only the Constitution and the law.

Constitutional Court

The Constitutional court consists of the Chief Justice, the deputy Chief Justice and nine other judges. It is the highest court in all constitutional matters and is restricted to deciding only constitutional and related matters and is the court of last instance whenever it has jurisdiction. A constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution. Direct access to the Constitutional court as a court of first instance is prohibited unless this is in the interests of justice. The Constitutional court has its seat in Johannesburg.

Supreme Court of Appeal

The Supreme Court of Appeal (SCA) consists of a president, deputy president and the number of judges of appeal as determined by legislation. No right of appeal to the SCA exists; leave to appeal to this court is required. The SCA has an inherent jurisdiction and is the highest court of appeal in all matters other than constitutional matters or those related thereto. The SCA has its seat in Bloemfontein.

The High Courts

The High Courts are divided into provincial and local divisions. Each province has its own provincial division with three local divisions sitting in Durban, Port Elizabeth and Johannesburg (Witwatersrand). The provincial divisions in these districts exercise concurrent jurisdiction in the Durban, Port Elizabeth and Witwatersrand areas. High courts have an inherent jurisdiction to hear any matter including constitutional matters excepting those that the constitutional court can only hear. The High courts further hear and determine appeals and reviews from lower courts within their provincial area of jurisdiction.

The Magistrate’s Courts

Each province is divided into a number of magisterial districts each with their own Magistrate’s court that has jurisdiction to hear those matters falling within its jurisdictional district. The Magistrate’s courts do not have an inherent jurisdiction, rather, they are created and regulated by the Magistrate’s courts Act 32 of 1944. These courts have criminal and civil jurisdiction and are further divided into regional courts (having jurisdiction in respect of criminal matters only) and maintenance courts (hearing only maintenance related matters).

MVA / Personal Injury Claims

Everyday our interactions with others, whether it be driving on the same road together or working together in the same office, exposes us to the possible liability of a personal injury claim against ourselves. We always act in such a manner so as to avoid such a situation arising, however, one’s luck invariably runs out at some stage. A successful claim is dependent on the claimant showing the defendant was negligent. An apportionment in accordance with each party’s negligence is usually applied in such cases to the amount claimed, which is in accordance with the Apportionment of Damages Act, 1956.

The Road Accident Fund (RAF) is a government body established in terms of the Road Accident Fund Act 56 of 1996. The RAF was established with the aim of compensating the victims of traffic accidents by providing them with compensation for both their patrimonial and non-patrimonial damages i.e. the RAF takes the place of the wrongdoer. The RAF is liable to compensate a person if ‘the injury or death is due to the negligence of or wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employees duties as an employee’.

Although liability lies against the RAF and not the actual wrongdoer, the victim is still required to prove the elements of a delict in order to be successful in his claim. It is important to note that the act excludes victims of traffic accidents from proceeding against those responsible in their personal capacity, however, in terms of the act there are a number of situations in which the RAF’s liability is limited or ultimately excluded. In such circumstances it is possible to proceed against the third party in their personal capacity.

Claims against the RAF can only be made by oneself personally or by an attorney on your behalf. The process is fairly time consuming and requires the gathering and putting together of a number of a fair amount of documentation, thus instructing an attorney in this regard is recommended.

Civil Law

Contracts, agreements, marriage, buying, selling, renting and leasing, to mention but a few, are all transactions that all of us will one day deal in, whether it be directly or indirectly.

With this in mind, have you ever thought of what would happen, for example, in a contractual scenario, where a dispute arose between yourself and the other party as to what exactly had been agreed. Whenever such a dispute arises between parties or the rights of an individual are infringed or threatened, the civil law is available to bring the matter to a conclusion and bring about a fair and just result as between the parties.

Civil litigation takes place in the High courts and the Magistrate’s courts, depending on the subject matter of the dispute and whether it falls within that particular court’s jurisdiction.

Insurance Law

Everyday life exposes all of us to a number of risks that, should they transpire, can or will result in patrimonial or non-patrimonial loss or damages to oneself or others.

These everyday risks we face may or may not come to pass, however it may very well at some point be another person that suffers as a result of your actions, whether these be negligent or not. In order to protect ourselves from such risks it is a well established practice to take out insurance, essentially a method whereby the financial or other detrimental effects of the risk concerned are spread out among all those involved in the particular insurance scheme by each insured party contributing a small amount towards neutralizing the effects of the risk.

Insurance cover is generally implemented in terms of a contract of insurance whereby the insurer agrees to take over the risk to which the insured is exposed so long as the insured pays a premium.

Aspects of negligence play an important role in determining the liability of the insurer in circumstances where the risk guarded against transpires. An apportionment of liability is inevitably almost always attributed to common insurance claims such as motor vehicle accidents and the like. Attorneys specializing in insurance law are able to bring about the best possible outcome for the insurers and their clients, thereby saving them money and ensuring a prosperous business.

South Africa now has separate statutes governing both long and short term insurance, which legislation is essentially concerned with regulatory matters relating to the insurer, insured and insurer’s policy. Consumer protection is also highlighted and is often a harsh reality that an insured might face at some point.