About South Africa

The Legal System         

Judicial powers are exercised by a formal court system. This comprises a hierarchy of courts, with each level in the hierarchy having a specified jurisdiction.

The Small Claims Courts deal with claims with a monetary value of up to R3000. Litigants appear personally with no legal representation and proceedings are relatively informal, providing swift and effective relief

The lower courts are called Magistrates" Courts and these generally have jurisdiction over most criminal cases and civil cases where the amount in dispute is less than R100 000. Magistrates are officials of the Department of Justice and are appointed by an independent body, the Magistrates Commission.

The superior courts are called the High Courts. There are a number of provincial and local High Courts. Judges, appointed by the Judicial Services Commission (an independent body), are usually chosen from the ranks of practising senior advocates, attorneys or academics and they enjoy a high degree of autonomy and independence. The High Court has original jurisdiction in respect of criminal matters and civil matters, and has appellate jurisdiction in respect of matters originally heard in the Magistrates" Courts and matters heard by single judges in the High Court.

The highest Court in South Africa for non-constitutional matters is the Supreme Court of Appeal. It is situated in Bloemfontein, and has appellate jurisdiction only. Its judgments are binding on all lower Courts.

The Constitutional Court has jurisdiction throughout South Africa as a court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of the Constitution. Most constitutional disputes will first be heard by a High Court. However, some constitutional matters fall exclusively within the jurisdiction of the Constitutional Court.

Although many commercial contracts are specifically made subject to the jurisdiction of the Magistrates" Court (which can exercise that jurisdiction even though such cases would normally fall outside its jurisdiction), as a general rule commercial matters involving significant monetary value will be heard in a High Court.

Commercial disputes in the area of jurisdiction of the Witwatersrand Provincial Division of the High Court, an area which includes Johannesburg, Pretoria and the Witwatersrand and which is the largest commercial centre of South Africa, may be referred to a Commercial Court which has been established as part of the High Court. The Commercial Court"s judges have expertise in commercial matters and special rules and procedures are available to facilitate and expedite the handing down of decisions.

Arbitration, mediation and other alternative dispute resolution procedures are widely used as an alternative to the Courts. A non-governmental body, the Arbitration Foundation of Southern Africa (AFSA) in Johannesburg is often used particularly in commercial disputes. Arbitration clauses are often incorporated in commercial contracts.

The legal profession is divided into two branches:

• Advocates (comparable to British barristers) do mostly trial work, especially in the High Courts. They may not take work directly from the public, but must be briefed by attorneys. In addition they may not form partnerships but must remain independent
• Attorneys (comparable to British solicitors) who deal directly with clients and are entitled, if they so wish, to work in partnerships.

Advocates were previously the only lawyers entitled to appear in the High Courts. However, attorneys who have been practising for more than three years may now obtain equal rights of appearance in all Courts.

The separate professional bodies existing before 1994, namely Provincial Law Societies, the Black Lawyers Association and the National Association of Democratic Lawyers have been fused into one body, the Law Society of South Africa, to represent the profession as a whole.

The controversial Legal Practice Bill, which provides for compulsory community service for lawyers and has raised concerns about the independence of the profession due to powers given to the Minister of Justice, has gone through a number of drafts and is expected to be enacted towards the end of 2003.

All advocates and most attorneys are university graduates. New attorneys are required to be university graduates. The legal profession is based largely on the British system, and the level of expertise and service is comparable to that found in Britain or the United States. The larger commercial firms of attorneys have extensive contacts with international colleagues and clients and are experienced in all kinds of commercial work. Professional fees are low compared to those in North America and Europe.