How Litigation Works in South Africa

Wondering how to proceed with litigation in South Africa? This useful guide gives you all the answers you need on surviving litigation in South Africa.

A List of South African Courts

The primary South African courts include the following:

  • The Constitutional Court: This court hears matters regarding the interpretation, protection and enforcement of the Constitution.  This court will also hear matters as first instance if the court feels that the matter is in the interest of justice, affects the community or has a strong point in law.

 

  • The Supreme Court of Appeal: Based in Bloemfontein, this is the second highest court in South Africa and it only deals with cases sent from the High Court. The SCA is purely an appeal court, which means it deals only with appeals and related appeal issues.

 

  • The High Court: Each High Court division has general jurisdiction over the area in which it is based. This court deals with all matters, but generally only hears civil matters involving R400, 000 and above along with serious criminal cases, divorces, money owed etc.

 

  • The Regional Magistrates Court: Deals with matters from R200,000 to R400, 000, this court deals with anything that changes ones status or more serious criminal cases.

 

  • The District Magistrates Court: There are roughly 350 magisterial courts. These courts hear all criminal cases, except treason, murder and rape, and can impose a sentence of under three years imprisonment and a fine of no more than R120,000. Civil cases of R200,000 can also be heard in this court.

 

  • The Small Claims Court: This court deals with minor civil claims of R15,000 or less. Attorneys are not required, but they can assist those seeking advice on minor civil issues.

 

  • The Labour Court: This court hears labour law cases only, ranging from trade union issues to strikes and lockouts, unfair dismissal, discrimination, various other unfair labour practices and work related offences such as theft, misconduct and sexual harassment.

 

  • The Children’s Court: Every Magistrate’s Court in South Africa is a Children’s Court. This court deals with cases relating to the welfare of abused, neglected and abandoned children along with various other cases relating to child welfare. The purpose of this court is to give effect to section 28 of the Constitution which holds the best interests of children to be of upmost importance.

 

  • The Maintenance Court: Every magistrate’s court in South Africa is also a maintenance court, dealing specifically with maintenance issues.

 

  • The Family Court: Dealing with issues such as guardianship and custody of children. This court also helps prevent children from having to appear in court and limit any related trauma.

 

  • The Domestic Violence Court: This court deals with the protection of victims of violence not only within the household unit. It deals with protection orders, damage to property or person where harm is committed either physically, sexually and emotionally to name a few.

 

  • The CCMA Commission: This Commission deals with work related issues usually before they are taken to the Labour Courts. These work related issues are dealt with by conciliation, mediation and arbitration which helps negotiate a solution between parties in conflict or for employees whom are begrudged.

 

Choosing a Court in South Africa

Courts can hear cases only if they have jurisdiction within the given area. That means that you cannot choose the court. Instead, courts are determined by the following factors:

The value of the claim.

Anything  between R15,000 and below  is heard in the Small Claims Court.
Anything between R200,000 and below  is heard in a District Magistrates Court.
Anything above R200,000 but under R400,000 is heard in a Regional Magistrates Court.
Anything over R400,000 is heard in the High Court.

The nature of the claim.

The nature of the claim will also determine the court. For example, a child-related issue will be heard in the Children’s Court or High Court, a maintenance issue will be heard in the Maintenance Court, a labour issue will be heard in the Labour Court, a criminal case will be heard in the High Court or Magistrate Court or a Regional Court, a constitutional case will be heard in the Constitutional Court and an appeal on a current conviction  from High Court will be heard in the Supreme Court of Appeals.

The geographical area.

Finally, another factor that determines the court is the area. Courts typically have authority within certain jurisdictions. If you are based in Durban, you will likely be heard in a Durban court rather than a Cape Town court. This does not apply in the case of the Supreme Court of Appeals or Constitutional Court, however, as these have jurisdiction on a broader country-wide level.

Proceeding With Litigation in South Africa

If you have a good lawyer, you will be taken through the process step by step. To give you an idea of how courts work once matters proceed to trial, here’s what to expect when proceeding with litigation in South Africa:

  • South Africa follows an adversarial trial system that allows both plaintiff and defendant to argue their versions in front of a judge. No jury is present – instead, you will be taking your case to a judge that oversees the entire trial. It is important to note that a judge is an unbiased third party whom will make decisions based on evidence presented from both parties.

 

  • The Plaintiff’s attorney’s on record or advocate  will outline their case before the court, presenting evidence to show that their client’s case is reasonably true. The plaintiff will then close their case once they have given their evidence.

 

  • If there are witnesses for the Paintiff’s case, the attorney or advocate will question them, allowing the other side to cross- examine the witness where lastly the Plaintiff’s attorn ey or advocate will re-examine and close their case.

 

  • The Defendant’s attorney’s on record or advocate then needs to outline their client’s case, showing that there is sufficient evidence to disprove the plaintiff’s case. Once they have finalised their case, they will close.

 

  • If witnesses are required to give evidence, they will be examined in turn by the Defendant’s attorney on record or advocate, then the opposing party may cross-examine the witness where the Defendant will then re-examine the witness and close their case.

 

  • Once both parties have finalised their cases, they will each present their final closing arguments before the judge. No new evidence is permitted during these closing arguments.

 

  • The judge will then make the final ruling decision, after evaluating evidence and arguments from both parties.

Do You Need a Lawyer for Litigation in South Africa?

Every person deserves the right to a fair speedy trial. While you have the choice whether or not to hire a lawyer, having legal assistance is the best way to ensure a positive outcome in your case. A lawyer that works with you each step of the way can also give you peace of mind.

To find out more about seeking professional help with litigation in South Africa, contact our team of legal specialists today.