Understanding the South African Litigation Landscape: Beyond TV’s Portrayal

For many, our understanding of litigation is shaped by TV legal dramas, featuring dramatic jury trials and emotive arguments. However, the South African legal system operates quite differently. Here, we demystify the litigation process in South Africa, distinct from the TV portrayal.

The Absence of Jury Trials

One of the key differences is the absence of jury trials in South African courts. All cases are decided by judges or magistrates, not by a jury.

Types of Legal Proceedings in South Africa

In South Africa, legal proceedings are primarily initiated through two methods: action proceedings and application (or motion) proceedings.

Action Proceedings

• Initiation: The plaintiff issues a summons.

• Process: Involves exchange of pleadings, leading to a trial.

• Trial Phase: Similar to the Oscar Pistorius trial, where witnesses provide oral evidence and advocates engage in arguments and cross-examinations.

Application Proceedings

• Initiation: The applicant issues a notice of motion and a founding affidavit.

• Response: The respondent counters with an answering affidavit, followed by the applicant's replying affidavit.

• Evidence: Restricted to what is contained in the affidavits, without oral testimonies.

Choosing the Right Procedure

The choice between action and application proceedings depends on the case's specifics. If there are anticipated material disputes of fact, action proceedings are preferable. As per Judge Opperman's statement, if an application cannot be decided on paper due to factual disputes, the court may either dismiss it or refer it for oral evidence or trial.

Monetary Jurisdiction of Courts

In South Africa, the monetary value of the claim often dictates the court in which it is lodged:

• High Court: Claims exceeding R 400,000.00.

• Magistrates Court: Claims below R 400,000.00.

The Complexity of Each Case

Every legal case in South Africa has its unique complexities. Therefore, it is crucial to consult with an attorney to understand your legal rights and obligations. Litigation is often considered a last resort due to its intricate nature.

Conclusion

South African litigation is a complex process that differs significantly from the dramatized versions seen on TV. Understanding the nuances of action and application proceedings, as well as the importance of selecting the appropriate court, is essential. For expert guidance through the South African litigation process, or to better understand your legal options, contact our law firm today.