Superior Courts Act, 2013
(English text signed by the President.)
(Assented to 12 August 2013.)
Act
To rationalise, consolidate and amend the laws relating to the Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa; to make provision for the administration of the judicial functions of all courts; to make provision for administrative and budgetary matters relating to the Superior Courts; and to provide for matters incidental thereto.
Preamble
Noting that section 1 of the Constitution of the Republic of South Africa, 1996, provides that the supremacy of the Constitution and the rule of law form part of the founding values of the Republic;
And section 165 of the Constitution provides that—
And section 166 of the Constitution provides that the courts are—
And section 171 of the Constitution provides that all courts function in terms of national legislation, and their rules and procedures must be provided for in terms of national legislation;
And section 180 of the Constitution provides that national legislation may provide for any matter concerning the administration of justice that is not dealt with in the Constitution;
And item 16(6)(a) of Schedule 6 to the Constitution provides that as soon as practical after the Constitution took effect all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the Constitution;
Noting further that, with the advent of the democratic constitutional dispensation in 1994, the Republic inherited a fragmented court structure and infrastructure which were largely derived from our colonial history and were subsequently further structured to serve the segregation objectives of the apartheid dispensation;
And that, before the advent of the democratic constitutional dispensation in 1994, the Magistrates' Courts were not constitutionally recognised as part of the judicial authority and were largely dealt with as an extension of the public service;
And that, since the Constitution provides that the judicial authority is vested in all the courts, it is desirable to provide for a uniform framework for judicial management, by the judiciary, of the judicial functions of all courts;
And recognizing that the rationalisation envisaged by item 16(6)(a) of Schedule 6 to the Constitution is an on-going process that is likely to result in further legislative and other measures in order to establish a judicial system suited to the requirements of the Constitution,
Parliament of the Republic of South Africa enacts, as follows:—
Chapter 1
Introductory Provisions
Definitions
1. In this Act, unless the context otherwise indicates—
“appeal” in Chapter 5, does not include an appeal in a matter regulated in terms of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), or in terms of any other criminal procedural law;
“business day” means a day that is not a public holiday, Saturday or Sunday;
“Constitution” means the Constitution of the Republic of South Africa, 1996;
“Department” means the Department responsible for the administration of justice;
“Director-General” means the Director-General of the Department;
“Division” means any Division of the High Court;
“full court”, in relation to any Division, means a Court consisting of three judges;
“head of court”, in relation to—
“High Court” means the High Court of South Africa referred to in section 6(1);
“judicial officer” means any person referred to in section 174(1) of the Constitution;
“Judicial Service Commission” means the Judicial Service Commission referred to in section 178 of the Constitution;
“Magistrates' Court” means any court established in terms of section 2 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944);
“Minister” means the Cabinet member responsible for the administration of justice;
“plaintiff” includes any applicant or other party who seeks relief in civil proceedings;
“prescribed” means prescribed by regulation made in terms of this Act;
“President” means the President of the Republic of South Africa;
“registrar” means the registrar of the Constitutional Court, the Supreme Court of Appeal or any Division of the High Court, as the case may be, and includes an assistant registrar;
“rules” means the applicable rules of court;
“Rules Board” means the Rules Board for Courts of Law, established by the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985);
“Secretary-General” means the head of the Office of the Chief Justice, referred to in Column 2 of Schedule 1 to the Public Service Act, 1994 (Proclamation No. 103 of 1994);
“Superior Court” means the Constitutional Court, the Supreme Court of Appeal, the High Court and any court of a status similar to the High Court;
“this Act” includes any regulation.
Objects and interpretation of Act
2. (1) The objects of this Act are—
(2) This Act must be read in conjunction with Chapter 8 of the Constitution, which contains the founding provisions for the structure and jurisdiction of the Superior Courts, the appointment of judges of the Superior Courts and matters related to the Superior Courts.
(3) The provisions of this Act relating to Superior Courts other than the Constitutional Court, the Supreme Court of Appeal or the High Court of South Africa, are complementary to any specific legislation pertaining to such Courts, but in the event of a conflict between this Act and such legislation, such legislation must prevail.
Introduction of legislation dealing with court structures
3. The Minister must be consulted prior to the introduction in Parliament, by a person other than the Minister, of any bill—
Chapter 2
Constitutional Court, Supreme Court of Appeal and High Court of South Africa
Constitution and seat of Constitutional Court
4. (1) (a) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice of South Africa and nine other judges of the Constitutional Court.
(b) The seat of the Constitutional Court is in Johannesburg, but whenever it appears to the Chief Justice that it is expedient or in the interests of justice to hold its sitting for the hearing of any matter at a place elsewhere than at the seat of the Court, it may hold such sitting at that place.
(2) The Deputy Chief Justice must—
Constitution and seat of Supreme Court of Appeal
5. (1) (a) The Supreme Court of Appeal consists of—
(b) Subject to section 9(1), the seat of the Supreme Court of Appeal is in Bloemfontein, but whenever it appears to the President of the Supreme Court of Appeal that it is expedient or in the interests of justice to hold its sitting for the hearing of any matter at a place elsewhere than at the seat of the Court, it may hold such sitting at that place.
(2) The Deputy President of the Supreme Court of Appeal must—
Constitution of High Court of South Africa
6. (1) The High Court of South Africa consists of the following Divisions:
(2) Each Division of the High Court consists of—
(3) (a) The Minister must, after consultation with the Judicial Service Commission, by notice in the Gazette, determine the area under the jurisdiction of a Division, and may in the same manner amend or withdraw such a notice.
(b) The area under the jurisdiction of a Division may comprise any part of one or more provinces.
(c) The Minister may, after consultation with the Judicial Service Commission, by notice in the Gazette establish one or more local seats for a Division, in addition to the main seats referred to in subsection (1), and determine the area under the jurisdiction of such a local seat, and may in the same manner amend or withdraw such a notice.
(d) The publication of a notice referred to in paragraph (a) or (c) does not affect any proceedings which are pending at the time of such publication.
(4) If a Division has one or more local seats—
(5) If a judge of one Division is to be temporarily assigned to another Division, such assignment must take place by way of an acting appointment in terms of section 175(2) of the Constitution.
(6) (a) Subject to paragraph (b), a Deputy Judge President of a Division must—
(b) If more than one Deputy Judge President is appointed in respect of a Division, the most senior Deputy Judge President of that Division must exercise the powers or perform the functions of the Judge President in the circumstances referred to in paragraph (a)(ii).
(7) Whenever it appears to the Judge President of a Division that it is expedient or in the interests of justice to hold a sitting for the hearing of any matter at a place elsewhere than at the seat or a local seat of the Division, he or she may, after consultation with the Minister, hold such sitting at that place.
Circuit Courts
7. (1) The Judge President of a Division may by notice in the Gazette within the area under the jurisdiction of that Division establish circuit districts for the adjudication of civil or criminal matters, and may by like notice alter the boundaries of any such district.
(2) In each circuit district of a Division there must be held, at least twice a year and at such times and places as may be determined by the Judge President concerned, a court which must be presided over by a judge of that Division.
(3) A court referred to in subsection (2) is called a circuit court of the Division in question.
Chapter 3
Governance and administration of all courts
Judicial management of judicial functions
8. (1) For the purpose of any consultation regarding any matter referred to in this section, the Chief Justice may convene any forum of judicial officers that he or she deems appropriate.
(2) The Chief Justice, as the head of the judiciary as contemplated in section 165(6) of the Constitution, exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.
(3) The Chief Justice may, subject to subsection (5), issue written protocols or directives, or give guidance or advice, to judicial officers—
(4) (a) Any function or any power in terms of this section, vesting in the Chief Justice or any other head of court, may be delegated to any other judicial officer of the court in question.
(b) The management of the judicial functions of each court is the responsibility of the head of that court.
(c) Subject to subsections (2) and (3), the Judge President of a Division is also responsible for the co-ordination of the judicial functions of all Magistrates' Courts falling within the jurisdiction of that Division.
(5) Any protocol or directive in terms of subsection (3)—
(6) The judicial functions referred to in subsection (2) and subsection (4)(b) include the—
(7) The Chief Justice may designate any judge to assist him or her in his or her judicial leadership functions.
Access to courts, recess periods and attendance at courts
9. (1) All Superior Courts—
(2) Superior Courts may have such recess periods as may be determined by the Chief Justice in consultation with the heads of court and the Minister in order to enable judges to do research and to attend to outstanding or prospective judicial functions that may be assigned to them.
(3) During each recess period, the head of each court must ensure that an adequate number of judges are available in that court to deal with any judicial functions that may be required, in the interests of justice, to be dealt with during that recess period.
(4) Subject to subsections (1) and (2), the head of each Superior Court is responsible to—
Finances
10. Expenditure in connection with the administration and functioning of the Superior Courts must be defrayed from moneys appropriated by Parliament.
Appointment of officers and staff
11. (1) (a) Subject to paragraph (b), the Minister must appoint for the Constitutional Court, the Supreme Court of Appeal and each Division a court manager, one or more assistant court managers, a registrar, assistant registrars and other officers and staff whenever they may be required for the administration of justice or the execution of the powers and authorities of the said court.
(b) Any appointment by the Minister in terms of paragraph (a) must be made—
(c) A court manager is the senior executive officer of the court where he or she has been appointed, and exercises administrative control over the other persons referred to in paragraph (a), and, under the control and direction of the head of court concerned performs such other functions as may be determined by the Secretary-General and the Chief Justice.
(2) Whenever by reason of absence or incapacity any court manager, registrar or assistant registrar is unable to carry out the functions of his or her office, or if his or her office becomes vacant, the Minister may, after consultation with the head of court concerned, authorise any other competent officer in the public service to act in the place of the absent or incapacitated officer during such absence or incapacity or to act in the vacant office until the vacancy is filled.
(3) Any person appointed under subsection (1) may hold more than one of the offices mentioned in that subsection simultaneously.
(4) The Minister may delegate any of the powers vested in him or her under this section to the Secretary-General.
Chapter 4
Manner of arriving at decisions by Superior Courts
Manner of arriving at decisions by Constitutional Court
12. (1) In accordance with section 167(2) of the Constitution, any matter before the Constitutional Court must be heard by at least eight judges.
(2) If, at any stage after a hearing has commenced, any judge of the Constitutional Court is absent or unable to perform his or her functions, or if a vacancy among the members of the court arises, and—
(3) No judge may sit at the hearing of an appeal against a judgment or order given in a case which was heard before him or her.
Manner of arriving at decisions by Supreme Court of Appeal
13. (1) Proceedings of the Supreme Court of Appeal must ordinarily be presided over by five judges, but the President of the Supreme Court of Appeal may—
(2) (a) The judgment of the majority of the judges presiding at proceedings before the Supreme Court of Appeal shall be the judgment of the court.
(b) Where there is no judgment to which a majority of such judges agree, the hearing must be adjourned and commenced de novo before a new court constituted in such manner as the President of the Supreme Court of Appeal may determine.
(3) If, at any stage after the hearing of an appeal has commenced, a judge of the Supreme Court of Appeal is absent or unable to perform his or her functions, or if a vacancy among the members of the court arises—
(4) Two or more judges of the Supreme Court of Appeal, designated by the President of the Supreme Court of Appeal, have jurisdiction to hear and determine applications for interlocutory relief, including applications for condonation and for leave to proceed in forma pauperis, in chambers.
(5) No judge may sit at the hearing of an appeal against a judgment or order given in a case which was heard before him or her.
Manner of arriving at decisions by Divisions
14. (1) (a) Save as provided for in this Act or any other law, a court of a Division must be constituted before a single judge when sitting as a court of first instance for the hearing of any civil matter, but the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge, may at any time direct that any matter be heard by a court consisting of not more than three judges, as he or she may determine.
(b) A single judge of a Division may, in consultation with the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge, at any time discontinue the hearing of any civil matter which is being heard before him or her and refer it for hearing to the full court of that Division as contemplated in paragraph (a).
(2) For the hearing of any criminal case as a court of first instance, a court of a Division must be constituted in the manner prescribed in the applicable law relating to procedure in criminal matters.
(3) Except where it is in terms of any law required or permitted to be otherwise constituted, a court of a Division must be constituted before two judges for the hearing of any civil or criminal appeal: Provided that the Judge President or, in the absence of both the Judge President and the Deputy Judge President, the senior available judge, may in the event of the judges hearing such appeal not being in agreement, at any time before a judgment is handed down in such appeal, direct that a third judge be added to hear that appeal.
(4) (a) Save as otherwise provided for in this Act or any other law, the decision of the majority of the judges of a full court of a Division is the decision of the court.
(b) Where the majority of the judges of any such court are not in agreement, the hearing must be adjourned and commenced de novo before a court consisting of three other judges.
(5) If, at any stage during the hearing of any matter by a full court, any judge of such court is absent or unable to perform his or her functions, or if a vacancy among the members of the court arises, that hearing must—
(6) The provisions of subsection (4) apply, with the changes required by the context, whenever in the circumstances set out in subsection (5) a hearing proceeds before two or more judges.
(7) During any recess period, one judge designated by the Judge President shall, notwithstanding anything contained in this Act or any other law, but subject to subsection (3), exercise all the powers, jurisdiction and authority of a Division.
(8) No judge may sit at the hearing of an appeal against a judgment or order given in a case which was heard before him or her.
Chapter 5
Orders of constitutional invalidity, appeals and settlement of conflicting decisions
Referral of order of constitutional invalidity to Constitutional Court
15. (1) (a) Whenever the Supreme Court of Appeal, a Division of the High Court or any competent court declares an Act of Parliament, a provincial Act or conduct of the President invalid as contemplated in section 172(2)(a) of the Constitution, that court must, in accordance with the rules, refer the order of constitutional invalidity to the Constitutional Court for confirmation.
(b) Whenever any person or organ of state with a sufficient interest appeals or applies directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court, as contemplated in section 172(2)(d) of the Constitution, the Court must deal with the matter in accordance with the rules.
(2) If requested by the Chief Justice to do so, the Minister must appoint counsel to present argument to the Constitutional Court in respect of any matter referred to in subsection (1).
Appeals generally
16. (1) Subject to section 15(1), the Constitution and any other law—
(2) (a) (i) When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.
(ii) Save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.
(b) If, at any time prior to the hearing of an appeal, the President of the Supreme Court of Appeal or the Judge President or the judge presiding, as the case may be, is prima facie of the view that it would be appropriate to dismiss the appeal on the ground set out in paragraph (a), he or she must call for written representations from the respective parties as to why the appeal should not be so dismissed.
(c) Upon receipt of the representations or, failing which, at the expiry of the time determined for their lodging, the President of the Supreme Court of Appeal or the Judge President, as the case may be, must refer the matter to three judges for their consideration.
(d) The judges considering the matter may order that the question whether the appeal should be dismissed on the ground set out in paragraph (a) be argued before them at a place and time appointed, and may, whether or not they have so ordered—
(3) Notwithstanding any other law, no appeal lies from any judgment or order in proceedings in connection with an application—
Leave to appeal
17. (1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that—
(2) (a) Leave to appeal may be granted by the judge or judges against whose decision an appeal is to be made or, if not readily available, by any other judge or judges of the same court or Division.
(b) If leave to appeal in terms of paragraph (a) is refused, it may be granted by the Supreme Court of Appeal on application filed with the registrar of that court within one month after such refusal, or such longer period as may on good cause be allowed, and the Supreme Court of Appeal may vary any order as to costs made by the judge or judges concerned in refusing leave.
(c) An application referred to in paragraph (b) must be considered by two judges of the Supreme Court of Appeal designated by the President of the Supreme Court of Appeal and, in the case of a difference of opinion, also by the President of the Supreme Court of Appeal or any other judge of the Supreme Court of Appeal likewise designated.
(d) The judges considering an application referred to in paragraph (b) may dispose of the application without the hearing of oral argument, but may, if they are of the opinion that the circumstances so require, order that it be argued before them at a time and place appointed, and may, whether or not they have so ordered, grant or refuse the application or refer it to the court for consideration.
(e) Where an application has been referred to the court in terms of paragraph (d), the court may thereupon grant or refuse it.
(f) The decision of the majority of the judges considering an application referred to in paragraph (b), or the decision of the court, as the case may be, to grant or refuse the application shall be final: Provided that the President of the Supreme Court of Appeal may in exceptional circumstances, whether of his or her own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation.
(3) An application for special leave to appeal under section 16(1)(b) may be granted by the Supreme Court of Appeal on application filed with the registrar of that court within one month after the decision sought to be appealed against, or such longer period as may on good cause be allowed, and the provisions of subsection (2)(c) to (f) shall apply with the changes required by the context.
(4) The power to grant leave to appeal—
(5) Any leave to appeal may be granted subject to such conditions as the court concerned may determine, including a condition—
(6) (a) If leave is granted under subsection (2)(a) or (b) to appeal against a decision of a Division as a court of first instance consisting of a single judge, the judge or judges granting leave must direct that the appeal be heard by a full court of that Division, unless they consider—
(b) Any direction by the court of a Division in terms of paragraph (a), may be set aside by the Supreme Court of Appeal of its own accord, or on application by any interested party filed with the registrar within one month after the direction was given, or such longer period as may on good cause be allowed, and may be replaced by another direction in terms of paragraph (a).
(7) Subsection (2)(c) to (f) apply with the changes required by the context to any application to the Supreme Court of Appeal relating to an issue connected with an appeal.
Suspension of decision pending appeal
18. (1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.
(2) Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1)—
(5) For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules.
Powers of court on hearing of appeals
19. The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to any power as may specifically be provided for in any other law—
Settlement of conflicting decisions in civil cases
20. Whenever a decision on a question of law is given by a court of a Division which is in conflict with a decision on the same question of law given by a court of any other Division, the Minister may submit such conflicting decisions to the Chief Justice, who must cause the matter to be argued before the Constitutional Court or the Supreme Court of Appeal, as the case may be, in order to determine the said question of law for guidance.
Chapter 6
Provisions applicable to High Court only
Persons over whom and matters in relation to which Divisions have jurisdiction
21. (1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance, and has the power—
(2) A Division also has jurisdiction over any person residing or being outside its area of jurisdiction who is joined as a party to any cause in relation to which such court has jurisdiction or who in terms of a third party notice becomes a party to such a cause, if the said person resides or is within the area of jurisdiction of any other Division.
(3) Subject to section 28 and the powers granted under section 4 of the Admiralty Jurisdiction Regulation Act, 1983 (Act No. 105 of 1983), any Division may issue an order for attachment of property to confirm jurisdiction.
Grounds for review of proceedings of Magistrates' Court
22. (1) The grounds upon which the proceedings of any Magistrates' Court may be brought under review before a court of a Division are—
(2) This section does not affect the provisions of any other law relating to the review of proceedings in Magistrates' Courts.
Judgment by default
23. A judgment by default may be granted and entered by the registrar of a Division in the manner and in the circumstances prescribed in the rules, and a judgment so entered is deemed to be a judgment of a court of the Division.
Time allowed for appearance
24. The time allowed for entering an appearance to a civil summons served outside the area of jurisdiction of the Division in which it was issued, shall be not less than—
Circumstances in which security for costs shall not be required
25. If a plaintiff in civil proceedings in a Division resides within the Republic, but outside the area of jurisdiction of that Division, he or she shall not by reason only of that fact be required to give security for costs in those proceedings.
Disposal of records and execution of judgments of Circuit Courts
26. (1) Within one month after the termination of the sittings of any Circuit Court, the registrar thereof must, subject to any directions of the presiding judge or judges, transmit all records in connection with the proceedings in that court to the registrar of the Supreme Court of Appeal or the Division concerned, as the case may be, to be filed as records of that Court or Division.
(2) Any judgment, order or sentence of a Circuit Court may, subject to any applicable rules for the time being in force, be carried into execution by means of process of the Supreme Court of Appeal or the Division concerned, as the case may be.
Removal of proceedings from one Division to another or from one seat to another in same Division
27. (1) If any proceedings have been instituted in a Division or at a seat of a Division, and it appears to the court that such proceedings—
that court may, upon application by any party thereto and after hearing all other parties thereto, order such proceedings to be removed to that other Division or seat, as the case may be.
(2) An order for removal under subsection (1) must be transmitted to the registrar of the court to which the removal is ordered, and upon the receipt of such order that court may hear and determine the proceedings in question.
Prohibition on attachment to found jurisdiction within Republic
28. No attachment of property to found jurisdiction shall be ordered by a Division against a person who is resident in the Republic.
Chapter 7
Rules of court
Rules of Constitutional Court
29. (1) The Chief Justice, after consultation with the Minister, makes rules relating to the manner in which the Constitutional Court may be engaged in any matter, including the matters referred to in section 172 of the Constitution, and all matters relating to the proceedings of and before the Court.
(2) The Minister must table every rule and every amendment or repeal thereof in Parliament at least 30 days before the publication thereof.
(3) The rules must, when it is in the interests of justice and with the leave of the Court, allow a person—
Rules of Supreme Court of Appeal and High Court
30. (1) Rules for the Supreme Court of Appeal, the High Court and the Magistrates' Courts are made in accordance with the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985).
(2) The provisions of section 29(2) and (3) also apply to rules referred to in subsection (1).
Chapter 8
General provisions applicable to all Superior Courts
Part 1
Nature of courts
Nature of courts and seals
31. (1) Every Superior Court is a court of record.
(2) Every Superior Court must have for use, as occasion may require, a seal of such design as may be prescribed by the President by proclamation in the Gazette.
(3) The seal of a Superior Court must be kept in the custody of the Registrar.
Proceedings to be carried on in open court
32. Save as is otherwise provided for in this Act or any other law, all proceedings in any Superior Court must, except in so far as any such court may in special cases otherwise direct, be carried on in open court.
More than one court may sit at same time
33. The Supreme Court of Appeal and any Division may at any time sit in so many courts constituted in the manner provided for in this Act or any other applicable law as the available judges may allow.
Part 2
Adducing of evidence and procedural matters
Certified copies of court records admissible as evidence
34. Whenever a judgment, order or other record of any Superior Court is required to be proved or inspected or referred to in any manner, a copy of such judgment, order or other record duly certified as such by the registrar of that court under its seal shall be prima facie evidence thereof without proof of the authenticity of such registrar's signature.
Manner of securing attendance of witnesses or production of any document or thing in proceedings and penalties for failure
35. (1) A party to proceedings before any Superior Court in which the attendance of witnesses or the production of any document or thing is required, may procure the attendance of any witness or the production of any document or thing in the manner provided for in the rules of that court.
(2) Whenever any person subpoenaed to attend any proceedings as a witness or to produce any document or thing—
the court concerned may issue a warrant directing that he or she be arrested and brought before the court at a time and place stated in the warrant or as soon thereafter as possible.
(3) A person arrested under any such warrant may be detained thereunder in any prison or other place of detention or in the custody of the person who is in charge of him or her, with a view to securing his or her presence as a witness or production of any document or thing at the proceedings concerned: Provided that any judge of the court concerned may release him or her on a recognisance with or without sureties to attend as a witness or to produce any document or thing as required.
(4) Any person subpoenaed to attend any proceedings as a witness or to produce any document or thing who fails without reasonable excuse to obey such subpoena, is guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.
(5) If a person who has entered into any recognisance in terms of subsection (3) to attend such proceedings as a witness or to produce any document or thing fails without reasonable excuse so to attend or to produce such document or thing, he or she forfeits his or her recognisance and is guilty of an offence and liable upon conviction to a fine or to imprisonment for a period not exceeding three months.
Manner in which witness may be dealt with on refusal to give evidence or produce documents
36. (1) Whenever any person who appears either in obedience to a subpoena or by virtue of a warrant issued under section 35 or who is present and is verbally required by the Superior Court concerned to give evidence in any proceedings—
without any just excuse for such refusal or failure, the court may adjourn the proceedings for any period not exceeding eight days and may, in the meantime, by warrant commit the person so refusing or failing to prison unless the person consents to do what is required of him or her before he or she is so committed to prison.
(2) If any person referred to in subsection (1) again refuses at the resumed hearing of the proceedings to do what is so required of him or her, the court may again adjourn the proceedings and commit him or her for a like period and so again from time to time until such person consents to do what is required of him or her.
(3) Nothing contained in this section prevents the court from giving judgment in any matter or otherwise disposing of the proceedings according to any other sufficient evidence taken.
(4) No person is bound to produce any document or thing not specified or otherwise sufficiently described in the subpoena unless he or she actually has it in court.
(5) When a subpoena is issued to procure the attendance of any person as a witness or to produce any book, paper or document in any proceedings, and it appears that—
any judge of the court concerned may, notwithstanding anything contained in this section, after reasonable notice by the Registrar to the party who sued out the subpoena and after hearing that party in chambers if he or she appears, make an order cancelling such subpoena.
Witness fees
37. (1) The Minister may, in consultation with the Minister of Finance, by notice in the Gazette prescribe a tariff of allowances which must be paid to a witness in civil proceedings or to any person who is to accompany any such witness on account of the youth or infirmity due to old age or any disability of such witness.
(2) Such notice may differentiate between persons according to—
and may empower such officers in the service of the State as may be specified therein to order payment of allowances in accordance with a higher tariff than the tariff so prescribed in cases where payment of allowances in accordance with the prescribed tariff may cause undue hardship.
(3) Notwithstanding any other law, a Superior Court may order that no allowances or only a portion of the allowances prescribed shall be paid to any witness.
Reference of particular matters for investigation by referee
38. (1) The Constitutional Court and, in any civil proceedings, any Division may, with the consent of the parties, refer—
for enquiry and report to a referee appointed by the parties, and the court may adopt the report of any such referee, either wholly or in part, and either with or without modifications, or may remit such report for further enquiry or report or consideration by such referee, or make such other order in regard thereto as may be necessary or desirable.
(2) Any such report or any part thereof which is adopted by the court, whether with or without modifications, shall have effect as if it were a finding by the court in the proceedings in question.
(3) Any such referee shall for the purpose of such enquiry have such powers and must conduct the enquiry in such manner as may be prescribed by a special order of the court or by the rules of the court.
(4) For the purpose of procuring the attendance of any witness (including any witness detained in custody under any law) and the production of any document or thing before a referee, an enquiry under this section shall be deemed to be civil proceedings.
(5) (a) Any person summoned to attend as a witness or to produce any document or thing before a referee and who, without sufficient cause—
is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three months.
(b) Any person who, after having taken an oath or having made an affirmation, gives false evidence before a referee at an enquiry, knowing such evidence to be false or not knowing or believing it to be true, is guilty of an offence and liable on conviction to the penalties prescribed by law for perjury.
(6) Any referee is entitled to such remuneration as may be prescribed by the rules or, if no such remuneration has been so prescribed, as the court may determine and to any reasonable expenditure incurred by him or her for the purposes of the enquiry, and any such remuneration and expenditure must be taxed by the taxing master of the court and shall be costs in the cause.
Examination by interrogatories
39. (1) The Constitutional Court and, in connection with any civil proceedings pending before it, any Division, may order that the evidence of a person be taken by means of interrogatories if—
(2) Whenever an order is made under subsection (1), the registrar of the court must certify that fact and transmit a copy of his or her certificate to a commissioner of the court, together with any interrogatories duly and lawfully framed which it is desired to put to the said person and the fees and the amount of the expenses payable to the said person for his or her appearance as hereinafter provided.
(3) Upon receipt of the certificate, the interrogatories and the amounts contemplated in subsection (2), the commissioner must, in respect of the person concerned—
(4) The commissioner must further transmit to the said registrar a certificate showing the amount paid to the person concerned in respect of the expenses of his or her appearance, and the cost of the issue and service of the process for summoning such person before him or her.
(5) Any person summoned to appear in terms of subsection (3) who without reasonable excuse fails to appear at the time and place mentioned in the summons, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three months.
(6) Any interrogatories taken and certified under the provisions of this section shall, subject to all lawful exceptions, be received as evidence in the proceedings concerned.
Manner of dealing with commissions rogatoire, letters of request and documents for service originating from foreign countries
40. (1) Whenever a commission rogatoire or letter of request in connection with any civil proceedings received from any state or territory or court outside the Republic, is transmitted to the registrar of a Division by the Director-General of the Department, together with a translation in English if the original is in any other language, and an intimation that the Minister considers it desirable that effect should be given thereto without requiring an application to be made to such court by the agents, if any, of the parties to the action or matter, the registrar must submit the same to a judge in chambers in order to give effect to such commission rogatoire or letter of request.
(2) Whenever a request for the service on a person in the Republic of any civil process or citation received from any state, territory or court outside the Republic, is transmitted to the registrar of a Division by the Director-General of the Department, together with a translation in English if the original is in any other language, and an intimation that the Minister considers it desirable that effect should be given thereto, the registrar must cause service of the said process or citation to be effected in accordance with the rules by the sheriff or a deputy sheriff or any person specially appointed thereto by a judge of the court concerned.
(3) The registrar concerned must, after effect has been given to any such commission rogatoire, letter of request, process or citation, return all relevant documents, duly verified in accordance with the rules of court, to the Director-General of the Department for transmission.
(4) Except where the Minister directs otherwise, no fees other than disbursements shall be recovered from any state, territory or court on whose behalf any service referred to in this section has been performed.
Court may order removal of certain persons
41. (1) Any person who, during the sitting of any Superior Court—
may, by order of the court, be removed and detained in custody until the court adjourns.
(2) Removal and detention in terms of subsection (1) does not preclude the prosecution in a court of law of the person concerned on a charge of contempt of court.
Part 3
Process of Superior Courts
Scope and execution of process
42. (1) The process of the Constitutional Court and the Supreme Court of Appeal runs throughout the Republic, and their judgments and orders must, subject to any applicable rules of court, be executed in any area in like manner as if they were judgments or orders of the Division or the Magistrates' Court having jurisdiction in such area.
(2) The civil process of a Division runs throughout the Republic and may be served or executed within the jurisdiction of any Division.
(3) Any warrant or other process for the execution of a judgment given or order issued against any juristic person, partnership or firm may be executed by attachment of the property or assets of such juristic person, partnership or firm.
Execution of process by sheriff
43. (1) The sheriff must, subject to the applicable rules, execute all sentences, judgments, writs, summonses, rules, orders, warrants, commands and processes of any Superior Court directed to the sheriff and must make return of the manner of execution thereof to the court and to the party at whose instance they were issued.
(2) The return of the sheriff or a deputy sheriff of what has been done upon any process of a court, shall be prima facie evidence of the matters therein stated.
(3) The sheriff must receive and cause to be detained all persons arrested by order of the court or committed to his or her custody by any competent authority.
(4) A refusal by the sheriff or a deputy sheriff to do any act which he or she is by law required to do, is subject to review by the court concerned on application ex parte or on notice as the circumstances may require.
Transmission of summonses, writs and other process and of notice of issue thereof
44. (1) (a) In any civil proceedings before a Superior Court, any summons, writ, warrant, rule, order, notice, document or other process of a Superior Court, or any other communication which by any law, rule or agreement of parties is required or directed to be served or executed upon any person, or left at the house or place of abode or business of any person, in order that such person may be affected thereby, may be transmitted by fax or by means of any other electronic medium as provided by the rules.
(b) The document received or printed as a result of the transmission contemplated in paragraph (a) is of the same force and effect as if the original had been shown to or a copy thereof served or executed upon the person concerned, or left as aforesaid, as the case may be.
(2) A notice sent by fax, or any other electronic medium authorised by the rules—
is sufficient authority to any officer authorised by law to execute any such warrant or writ for the arrest and detention of such person.
(3) (a) A person arrested as contemplated in subsection (2) may be detained for the shortest period reasonably necessary, but not exceeding 48 hours, in order to bring the person before a judge of a Superior Court.
(b) The judge referred to in paragraph (a) must make an order regarding the attendance by the person in question of any further court proceedings and warn the person that any failure to abide by the order is an offence punishable by a fine or by imprisonment not exceeding one year.
(c) Any person who fails to abide by an order referred to in paragraph (b), is guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding one year.
Property not liable to be seized in execution
45. The sheriff or a deputy-sheriff may not seize in execution of any process such belongings of the debtor as prescribed, but the Court concerned may in exceptional circumstances and on such conditions as it may determine, in its discretion allow a specific deviation from the prescribed provisions.
Offences relating to execution
46. Any person who—
is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
Issuing of summons or subpoena in civil proceedings against judge
47. (1) Notwithstanding any other law, no civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court, and no subpoena in respect of civil proceedings may be served on any judge of a Superior Court, except with the consent of the head of that court or, in the case of a head of court or the Chief Justice, with the consent of the Chief Justice or the President of the Supreme Court of Appeal, as the case may be.
(2) Where the issuing of a summons or subpoena against a judge to appear in a civil action has been consented to, the date upon which such judge must attend court must be determined in consultation with the relevant head of court.
Acting judges of Superior Courts
48. Any person who has been appointed as an acting judge of a Superior Court must be regarded as having been appointed also for any period during which he or she is necessarily engaged in the disposal of any proceedings in which he or she has participated as such a judge, including an application for leave to appeal that has not yet been disposed of at the expiry of his or her period of appointment.
Regulations
49. (1) The Minister may, on the advice of the Chief Justice, make regulations regarding—
(2) Any regulation made under subsection (1) must be submitted to Parliament before publication thereof in the Gazette.
Chapter 9
Transitional provisions, amendment and repeal of laws, and commencement
Existing High Courts
50. (1) On the date of the commencement of this Act, but subject to the issuing of any notice referred to in section 6(3)(a) or (c), the—
of the High Court of South Africa, and the area of jurisdiction of each of those courts becomes the area of jurisdiction or part of the area of jurisdiction, as the case may be, of the Division in question.
(2) Notwithstanding section 6(1), the Gauteng Division shall also function as the Limpopo and Mpumalanga Divisions, respectively, until a notice published in terms of section 6(3) in respect of those Divisions comes into operation.
(3) Any circuit court established under any law repealed by this Act and in existence immediately before the commencement of this Act, shall be deemed to have been duly established in terms of this Act as a Circuit Court of the Division concerned.
(4) Any person holding office as the Judge President, a Deputy Judge President or a judge of a High Court referred to in subsection (1) when this Act takes effect, becomes the Judge President, a Deputy Judge President or a judge of the Division in question, as the case may be.
(5) The President may, with the view to facilitating and promoting the effective and efficient administration of justice in the Divisions established in terms of this Act, after consultation with the Chief Justice and the Minister, and with the consent of the judge concerned, transfer any judge of a Division to the Limpopo, Mpumalanga or North West Division.
Rules in existence immediately before commencement of Act
51. The rules applicable to the Constitutional Court, Supreme Court of Appeal and the various High Courts immediately before the commencement of this section remain in force to the extent that they are not inconsistent with this Act, until repealed or amended.
Pending proceedings when Act commences
52. (1) Subject to section 27, proceedings pending in any court at the commencement of this Act, must be continued and concluded as if this Act had not been passed.
(2) Proceedings must, for the purposes of this section, be deemed to be pending if, at the commencement of this Act, a summons had been issued but judgment had not been passed.
(3) Subsections (1) and (2) are also applicable, with the changes required by the context, in respect of proceedings pending on the date when a notice contemplated in section 50(2) comes into operation.
References in other laws
53. Any reference in any law—
Financial accountability
54. (1) The Minister must consider and address requests for funds needed for the administration and functioning of the Superior Courts, as determined by the Chief Justice after consultation with the other heads of Court, in the manner prescribed for the budgetary processes of departments of state.
(2) The Secretary-General, as accounting officer of the Office of the Chief Justice in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999), is charged with the responsibility of accounting for money received or paid out for or on account of the administration and functioning of the Superior Courts, and must cause the necessary accounting and other related records to be kept, in terms of that Act.
Repeal and amendment of laws
55. (1) The laws mentioned—
(2) Anything done under any provision of a law repealed or amended by subsection (1), shall, in so far as it may be necessary or appropriate, be deemed to have been done under the corresponding provision of this Act.
Short title and commencement
56. This Act is called the Superior Courts Act, 2013, and comes into operation on a date fixed by the President by proclamation in the Gazette.
Schedule 1
Laws repealed (Section 55(1)(a))
| Item No. | No. and year of law | Short title | Extent of repeal |
| 1 | Act No. 59 of 1959 | Supreme Court Act, 1959 | The whole |
| 2 | Act No. 59 of 1959 (Venda) | Supreme Court Act, 1959 | The whole |
| 3 | Act No. 15 of 1969 | Establishment of the Northern Cape Division of the Supreme Court of South Africa Act, 1969 | The whole |
| 4 | Act No. 15 of 1976 (Transkei) | Republic of Transkei Constitution Act, 1976 | Sections 44 up to and including 53 |
| 5 | Act No. 18 of 1977 (Bophuthatswana) | Republic of Bophuthatswana Constitution Act, 1977 | Sections 59 up to and including 67 |
| 6 | Act No. 9 of 1979 (Venda) | Republic of Venda Constitution Act, 1979 | Sections 42 up to and including 52 |
| 7 | Act No. 32 of 1982 (Bophuthatswana) | Supreme Court of Bophuthatswana Act, 1982 | The whole |
| 8 | Act No. 5 of 1983 (Transkei) | Supreme Court Act, 1983 | The whole |
| 9 | Decree No. 43 of 1990 (Ciskei) | Supreme Court Decree, 1990 | The whole |
| 10 | Decre No. 45 of 1990 (Ciskei) | Republic of Ciskei Constitution Decree, 1990 | The whole |
| 11 | Act No. 12 of 1995 | Constitutional Court Complementary Act, 1995 | The whole |
| 12 | Act No. 41 of 2001 | Interim Rationalisation of Jurisdiction of High Courts Act, 2001 | The whole |
| 13 | Act No. 30 of 2008 | Renaming of High Courts Act, 2008 | The whole |
Schedule 2
Laws repealed (Section 55(1)(b))
| Item No. | No. and year of law | Short title | Extent of amendment |
| 1 | Act No. 107 of 1985 | Rules Board for Courts of Law Act, 1985 |
1. Amendment of section 3 by the substitution for paragraph (a) of subsection (1) of the following paragraph: 2. Amendment of section 6— |
| 2 | Act No. 66 of 1995 | Labour Relations Act, 1995 |
1. Amendment of section 151 by the substitution for subsection (2) of the following subsection: “(2) The Labour Court is a superior court that has authority, inherent powers and standing, in relation to matters under its jurisdiction, equal to that which a court of a [provincial division] Division of the [Supreme Court] High Court of South Africa has in relation to matters under its jurisdiction.”. 2. Amendment of section 154— 3. Amendment of section 170— |
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