Procedures on ExcellentWiki - Legal Encyclopedia

Civil Procedure in South Africa

Tue, 07 Jul 2026 00:00:00 +0000

Introduction

South African civil procedure governs the process by which civil disputes are adjudicated in the courts. The primary sources are the Uniform Rules of Court (for the High Court), the Magistrates Court Rules, and the rules of various specialised courts. The procedural framework is largely derived from English common law, adapted to South African conditions and constitutional requirements.

Jurisdiction

Jurisdiction determines which court may hear a matter. The High Court has inherent jurisdiction over all civil matters, subject to monetary thresholds for Magistrates Courts. The Magistrates Courts have jurisdiction over claims up to R400,000 (Regional Court) or R200,000 (District Court). Jurisdiction is based on the defendant’s residence or the cause of action’s location.

Criminal Procedure in South Africa

Tue, 07 Jul 2026 00:00:00 +0000

Introduction

South African criminal procedure governs the investigation, prosecution, and adjudication of criminal offences. The primary legislation is the Criminal Procedure Act 51 of 1977 (CPA). The Constitution, particularly section 35, guarantees the rights of arrested, detained, and accused persons and imposes constitutional standards on criminal procedure.

Arrest

Arrest may be effected with or without a warrant. A warrant is issued by a magistrate or justice of the peace based on reasonable suspicion. Arrest without warrant is permitted in certain circumstances, including where the offence is committed in the presence of the officer. An arrested person must be informed of the reason for arrest and the right to legal representation.

Appellate Procedure in South Africa

Tue, 07 Jul 2026 00:00:00 +0000

Introduction

South African appellate procedure governs the process by which decisions of lower courts are challenged in higher courts. The appellate system is hierarchical, with the Constitutional Court at the apex, followed by the Supreme Court of Appeal (SCA), the High Courts (sitting as courts of appeal), and the Magistrates Courts. A distinction is drawn between appeal (challenging the merits) and review (challenging the legality of proceedings).

Appeal vs Review

An appeal challenges the correctness of a decision on the merits, while a review challenges the legality of the proceedings. An appeal is decided on the record of the lower court, while a review may consider procedural irregularities. The grounds of appeal include errors of law and unreasonable findings of fact. The grounds of review include bias, illegality, and procedural unfairness.

Labour Procedure in South Africa

Tue, 07 Jul 2026 00:00:00 +0000

Introduction

Labour procedure in South Africa governs the resolution of labour disputes through the specialised institutions established by the Labour Relations Act 66 of 1995 (LRA). The system provides for conciliation, mediation, and arbitration through the Commission for Conciliation, Mediation and Arbitration (CCMA), with further review and appeal to the Labour Court and Labour Appeal Court.

The CCMA

The CCMA is the primary dispute resolution body for labour disputes. It is an independent statutory body that provides conciliation and arbitration services. The CCMA has jurisdiction over disputes arising from the LRA, the Basic Conditions of Employment Act, and the Employment Equity Act.

Litigation Funding and Costs

Tue, 07 Jul 2026 00:00:00 +0000

Introduction

Litigation funding and costs are critical issues in South African civil procedure, affecting access to justice and the conduct of litigation. The legal framework addresses contingency fees, legal aid, cost orders, and the allocation of the financial risks of litigation. The constitutional right of access to courts (section 34) informs the development of this area.

Contingency Fees

Contingency fee arrangements are regulated by the Contingency Fees Act 66 of 1997. The Act permits attorneys to enter into contingency fee agreements in certain matters, including personal injury claims and medical malpractice cases. The agreement may provide for a success fee of up to 100% of the normal fee, or up to 25% of the amount recovered. The Act aims to improve access to justice by allowing litigants to pursue claims without upfront costs.

Class Actions and Public Interest Litigation

Tue, 07 Jul 2026 00:00:00 +0000

Introduction

Class actions and public interest litigation are important mechanisms for accessing justice in South Africa, particularly for groups whose individual claims may be too small to justify separate proceedings. The Constitution’s generous standing provisions (section 38) and the courts’ development of the class action mechanism have expanded access to justice in constitutional and commercial matters.

Constitutional Standing

Section 38 of the Constitution provides broad standing in constitutional matters. Anyone may approach a court when a right in the Bill of Rights has been infringed or threatened. Standing is granted to persons acting in their own interest, on behalf of others who cannot act in their own name, as a member of a class, in the public interest, or as an association acting in the interest of its members.