Litigation in South African Courts
Types of Litigation
In South Africa, civil litigation primarily takes place in either the Magistrates’ Courts or the High Courts.The key distinction between these two courts lies in their monetary and subject-matter jurisdiction. Magistrates’ Courts:
As of the latest amendments to the Magistrates’ Courts Act 32 of 1944 and its regulations, the monetary jurisdiction has been increased:
- Magistrates’ Courts: may now hear claims up to R200 000.
- Regional Magistrates’ Courts: may hear civil matters up to R400 000.
High Courts: The High Court retains unlimited monetary jurisdiction and exclusive competence to adjudicate matters affecting a person’s status, including divorce, insolvency, adoption, interdicts and administrative law matters.
High Court Litigation Process
How Does Litigation Begin?
The litigation process begins with a consultation between the client and an attorney to assess the merits of the case.
If the case has merit, the attorney prepares and issues either: - A summons (for action proceedings); or - A notice of motion with supporting affidavit (for motion proceedings).
Both documents are issued by the court with a case number and then served on the Defendant or Respondent by the Sheriff of the Court.
Action vs. Motion Proceedings Action Proceedings (Summons):
Used where disputes of fact exist. Witnesses testify in court, and oral evidence is presented.
Motion Proceedings (Application):
Used where disputes are primarily legal, not factual. The matter is decided on written affidavits and legal argument, making this process generally quicker and less expensive.
Prescription and Time Limits
Most civil claims prescribe after three years from the date the cause of action arose (unless a longer period applies in law, such as 15 years for judgment debts or 30 years for mortgage bonds). Issuing and serving summons interrupts the running of prescription in terms of the Prescription Act 68 of 1969.
Determining Jurisdiction Jurisdiction is generally determined by: - The Defendant’s residential or work address; - The place where the cause of action arose; or - The location of property in matters concerning immovable assets.
For example, if the Defendant resides or works in Roodepoort, summons will be issued in the Roodepoort Magistrates’ Court or the Gauteng Local Division of the High Court, depending on the monetary value of the claim. Duration of the Litigation Process Litigation remains a time-consuming process, often taking several months to years. After the exchange of pleadings, either party may request that the matter be set down for trial once the case is ready for hearing. The courts have introduced case management and judicial pre-trial conferences to promote expeditious finalisation of matters and reduce unnecessary delays.
The Trial During trial:
- Each party’s witnesses testify and are examined, cross-examined, and re-examined.
- The onus of proof in civil matters is on a balance of probabilities.
- In criminal matters, the prosecution bears the onus beyond reasonable doubt. After hearing evidence and arguments, the presiding officer delivers a judgment either immediately or after reserving judgment for a later date.
Costs
The general principle remains that the successful party is entitled to recover party-and-party costs from the opposing side — meaning those costs reasonably necessary for conducting the litigation.
Attorneys’ fees are governed by the Magistrates’ Courts Rules, High Court Rules, and the relevant tariffs of fees.
Clients should note that attorney-and-client costs (a higher scale) may be ordered in exceptional circumstances, such as where the losing party’s conduct was vexatious or unreasonable.
Our approach to litigation is to try and resolve disputes by the most commercially satisfactory method instead of lengthy and expensive litigation proceedings.
Alternative means of dispute resolution are increasingly being adopted in suitable cases as an effective way of resolving disputes and are being recommended to our clients whenever appropriate.