Criminal Procedure

GENERAL PRINCIPLES

QUESTION 1

Inferior courts are also known as the subordinate courts or lower courts. Inferior or lower courts are creatures of statute because it is restricted to the competence conferred upon it by its enabling (constituent) Act, Magistrate Courts Act 32 of 1994.

* Lower courts do not have inherent jurisdiction

* They derive their powers from the particular statute which created them

* Exercise of jurisdiction in lower courts is dependent on the extent to which its enabling statute permits it to exercise such jurisdiction

* Each enabling statute has to be carefully interpreted in order to determine scope of jurisdiction

* Magistrate courts are created by statutes and derives powers and competence from Magistrate Courts Act 32 of 1944.

Inferior courts do nothing not so permitted by enabling statute. They may only hear matters prescribed by the act with restricted competence.

Superior courts derive its inherent jurisdiction from common law. Superior courts do anything the law forbid.

* Its jurisdiction is derived from common law and not from statute

* The power to make rules is also an incident of the inherent jurisdiction of courts to regulate their practice.

* Court may condone any procedural mistakes or determine any point of procedure

* It has inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the lateral application of rules of court, would nevertheless be unfair to a party or otherwise bring the administration of justice into disrepute.

Section 173 of the Constitution of the Republic of South Africa 1996 confirms continued existence of common law power,

* Inherent power to protect and regulate own process

* Develop common law in the interests of justice.

A superior court exercises inherent jurisdiction because its competence is not reliant only on statutory law but also on common law. This is confirmed by section 173 of Constitution. Because...