BRICS LAW JOURNAL Volume III (2016) Issue 4 CIVIL JuSTICE In SouTH aFRICa DANIE VAN LOGGERENBERG, University of Pretoria (South Africa) Doi: 10.21684/2412-2343-2016-3-4-125-147 The South African adversarial system of civil procedure in the High Court owes its origin to that of England. As with all civil procedural systems, the South African system is not stagnant. Its primary sources, namely Acts of Parliament and rules of court, are constantly amended in an attempt to meet the changing needs of society. Court delay and cost- inefficient procedural mechanisms, however, contribute to public dismay. The High Court, in the exercise of its inherent power to regulate its process, do so with the purpose of enhancing access to justice. The advantage of the system lies in the fact that it is not cast in stone but could, subject to the Constitution of the Republic of South Africa, 1996, be developed to make it more accessible to the public whilst protecting the public’s fundamental rights entrenched in the Constitution and, in this regard, particularly the right to a fair trial embedded in sec. 34 of the Constitution. This contribution gives an overview of the system with reference to the court structure, the judiciary, the process in the High Court and its underlying principles, appeals, class actions and alternative civil dispute resolution mechanisms. Keywords: court structures; judiciary; civil procedure in the High Court; appeals; class actions; South Africa. Recommended citation: Danie van loggerenberg, Civil Justice in South Africa, 3(4) BriCs law Journal 125–147 (2016). Table of Contents Introduction 1. Sources of South African Civil Procedural Law 2. The Court Structure 3. Specialised Courts BRICS LAW JOURNAL Volume III (2016) Issue 4 126 4. The Judiciary 5. The Process 5.1. The Principles Underlying the Process 5.2. Proceedings in an Opposed Action 5.3. Proceedings in an Opposed Application 6. Evidence in Civil Proceedings 7. Appeals 8. Class Actions 9. Alternative Civil Dispute Resolution Mechanisms 10. Reform Introduction south african law distinguishes between substantive law and procedural law. substantive law essentially deals with the contents of a person’s rights, obligations and remedies in a given factual situation. Procedural law, including the law of civil procedure, deals with the enforcement of rights, obligations and remedies. south african law is mainly of roman-Dutch origin. its civil procedural law has, however, since the beginning of the 19th Century, assimilated to english methods.1 in this contribution, the focus will eventually be directed at the south african adversarial system of civil procedure in the high Court which owes its origin to that of england, but which has steered an independent course in its development since its implementation by the english in 1828.2 Civil procedure is not stagnant. The word “procedure” inherently means “going forward.”3 viewed as such, civil procedure not only aims at moving forward the dispute between the parties up to the point of its eventual determination by a court, but also aims at reflecting the evolution (i.e. change) of society and its needs. since all legal systems are closely linked to the historical, cultural, socio-economic and 1 hennie erasmus, The Interaction of Substantive and Procedural Law: The Southern African Experience in Historical and Comparative Perspective, 1 stellenbosch law review 348 (1990). 2 hennie erasmus, Historical Foundations of the South African Law of Civil Procedure, 108 The south african law Journal 265 (1991), where, amongst others, the following is stated: “south african civil procedure ‘owes its origin to and is essentially that of england.’ The forms of procedure devised under the First and second Charters of Justice of 1828 and 1834 for the supreme Court of the Colony of the Cape of good hope display the fundamental features characteristic of proceedings at common law, namely, the adversary character of the system and the predominant role of the parties in the conduct of the litigation, the passive and neutral role of the court, and the ‘morality, immediacy and publicity of its proceedings.’” 3 Wolfgang Bernhardt, Das Zivilprozessrecht (3rd ed., Berlin: De gruyter, 1968), correctly states that a legal procedure is “als lebensvorgang betrachtet, ein verfahren. Daher kommt auch der name: processor (procedure – vorwärtsschreiten).” DANIE VAN LOGGERENBERG 127 political milieu in which they have developed and find application, the character of a civil procedural system must necessarily depend upon a variety of factors, juridical and non-juridical, that determine its character. This is especially so in the case of south african civil procedural law which migrated from a superimposition of english procedural law upon roman-Dutch procedural law to a constitutional dispensation where the Constitution of the republic of south africa, 1996 (“the Constitution”), reigns supreme and, accordingly, every rule of civil procedure must be viewed and applied through the prism of the Constitution. 1. Sources of South African Civil Procedural Law south african civil procedural law is not codified. its main sources are: (a) The Constitution of the republic of south africa, 1996; (b) The superior Courts act 10 of 2013; (c) The inherent jurisdiction of the superior Courts derived from sec. 173 of the Constitution; (d) The magistrates’ Courts act 32 of 1944; (e) The small Claims Court act 61 of 1984; (f) rules of Court;4 (g) Practice directives; (h) The common law (i.e. the roman-Dutch law to the extent that it has not been repealed or abolished); (i) Case law. 2. The Court Structure in terms of sec. 166 of the Constitution, the courts in south africa consist of: (a) The Constitutional Court; (b) The supreme Court of appeal; (c) The high Court; (d) The magistrates’ Courts; (e) any other court established or recognised in terms of any act of Parliament. The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.5 no person or organ of state may interfere with the functioning of the courts.6 4 These rules consist of the rules of the Constitutional Court, the rules of the supreme Court of appeal, the uniform rules of Court in force in the various divisions of the high Court and the magistrates’ Courts rules. 5 sec. 165(2) of the Constitution. 6 sec. 165(3) of the Constitution. BRICS LAW JOURNAL Volume III (2016) Issue 4 128 organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.7 sec. 34 of the Constitution guarantees to everyone the right of access to court. it provides: everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. 3. Specialised Courts The following specialised courts are established or recognised in terms of acts of Parliament as contemplated in sec. 166 of the Constitution: 4.1. Courts having admiralty jurisdiction: in terms of sec. 2(1) of the admiralty Jurisdiction regulation act,8 each division of the high Court of south africa has jurisdiction (i.e. admiralty jurisdiction) to hear and determine any maritime claim, including in the case of salvage, claims in respect of ships, cargo or goods found on land, irrespective of the place where the claim arose, of the place of registration of the ship concerned or of the residence, domicile or nationality of the ship’s owner. 4.2. The labour Court: in terms of sec. 151 of the labour relations act,9 the labour Court is established as a court of law and equity10 with powers equal to that of the high Court.11 as a general rule, the labour Court deals exclusively with disputes arising from employment and other labour relations.12 4.3. The labour appeal Court: in terms of sec. 167 of the labour relations act,13 the labour appeal Court is established as a court of law and equity14 with powers equal to that of the supreme Court of appeal.15 The labour appeal Court is the final court of appeal in respect of all judgments and orders made by the labour Court.16 7 sec. 165(4) of the Constitution. 8 105 of 1983. 9 66 of 1995. 10 sec. 151(1). 11 sec. 115(2). 12 sec. 157. 13 66 of 1995. 14 sec. 167(1). 15 sec. 167(3). 16 sec. 167(2). DANIE VAN LOGGERENBERG 129 4.4. The Competition appeal Court: in terms of sec. 36 of the Competition act,17 the Competition appeal Court is established as a court with a status similar to that of the high Court.18 The function of the court is to review any decision of the Competition Tribunal or to consider an appeal arising from the Competition Tribunal.19 4.5. The land Claims Court: in terms of sec. 22 of the restitution of land rights act,20 the land Claims Court is established as a court of law21 with powers equal, in relation to matters falling within its jurisdiction, to that of the high Court.22 The land Claims Court, to the exclusion of the high Court, has the power, amongst others, to determine: (a) a right to restitution of any right in land in accordance with the provisions of the restitution of land rights act;23 (b) approve compensation payable in respect of land owned by or in the pos- session of a private person upon expropriation or acquisition of such land in terms of the restitution of land rights act; (c) the person entitled to title to land contemplated in sec. 3 of the restitution of land rights act; (d) whether compensation or any other consideration received by any person at the time of any dispossession of a right in land was just and equitable. 4.6. equality Courts: in terms of sec. 16 of the Promotion of equality and Pre- vention of unfair Discrimination act,24 every division of the high Court is an equality court for the area of its jurisdiction.25 equality Courts deal with inquiries into allegations concerning unfair discrimination, hate speech or harassment.26 4.7. The electoral Court: in terms of sec. 18 of the electoral Commission act,27 the electoral Court, with the status of the high Court, is established.28 The electoral 17 89 of 1998. 18 sec. 36(1)(a). 19 sec. 37(1)(a) and (b). The function of the Competition Tribunal is to adjudicate any conduct that is prohibited under the Competition act and to hear appeals from, or review any decision of, the Competition Commission (sec. 27). 20 22 of 1994. 21 sec. 22(1). 22 sec. 22(2)(a). 23 22 of 1994. 24 4 of 2000. 25 sec. 16(1)(a). 26 sec. 21(1). 27 51 of 1996. 28 sec. 18. BRICS LAW JOURNAL Volume III (2016) Issue 4 130 Court has jurisdiction to review any decision of the electoral Commission29 and to hear and determine an appeal against any decision of the Commission in so far as such decision relates to the interpretation of any law or any other matter for which an appeal is provided by law.30 4.8. Children’s Courts: in terms of sec. 42 of the Children’s act,31 every magistrate’s Court is a Children’s Court for its area of jurisdiction.32 a Children’s Court may adju- dicate any matter involving, amongst others: (a) the protection and well-being of a child; (b) the care of, or contact with a child; (c) paternity of a child; (d) support of a child; (e) maltreatment, abuse, neglect, degradation or exploitation of a child, except criminal prosecutions in that regard; (f) the temporary safe care of a child; (g) the adoption of a child, including an inter-country adoption.33 4.9. maintenance Courts: in terms of sec. 3 of the maintenance act,34 every magistrate’s Court (for a district) is, within its area of jurisdiction, a maintenance Court. a maintenance Court has jurisdiction to hold an inquiry into the provision of maintenance, and to make an order against the person legally liable to maintain any other person, to pay maintenance in respect of such latter person.35 4. The Judiciary 5.1. The Constitutional Court, the supreme Court of appeal and the high Court: sec. 174(1) of the Constitution provides that any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer and, further, 29 The electoral Commission is established by sec. 3 of the electoral Commission act 51 of 1996 to strengthen constitutional democracy and promote democratic electoral processes. The functions of the Commission include to – (i) manage any election; (ii) ensure that any election is free and fair; (iii) promote conditions conducive to free and fair elections; (iv) promote knowledge of sound and democratic electoral processes; (v) promote voter education. 30 sec. 20(1)(a) and (b). 31 38 of 2005. 32 sec. 42(1). 33 sec. 45(1). 34 99 of 1998. 35 secs. 10 to 18. DANIE VAN LOGGERENBERG 131 that any person to be appointed to the Constitutional Court must also be a south african citizen. 5.2. The labour Court: the Judge President and the Deputy Judge President of the labour Court must be judges of the high Court36 and must have knowledge, experience and expertise in labour law.37 a judge of the labour Court must be a judge of the high Court38 or be a person who is a legal practitioner39 and have knowledge, experience and expertise in labour law.40 5.3. The labour appeal Court: the labour appeal Court consists of: (a) the Judge President of the labour Court,41 who, by virtue of the provisions of sec. 153(2) of the labour relations act,42 must be a judge of the high Court and must have knowledge, experience and expertise in labour law; (b) the Deputy Judge President of the labour Court,43 who, by virtue of the provi-sions of sec. 153(2) of the labour relations act,44 must be a judge of the high Court and must have knowledge, experience and expertise in labour law; (c) such number of other judges who are judges of the high Court as may be required for the effective functioning of the labour appeal Court,45 and each of whom, by virtue of the provisions of sec. 174(1) of the Constitution, must be an appropriately qualified woman or man who is fit and proper to be appointed as a judge of the high Court. 5.4. The Competition appeal Court: the Judge President of the Competition appeal Court and each of its judges must be a judge of the high Court,46 who, by virtue of the provisions of sec. 174(1) of the Constitution, must be an appropriately qualified woman or man who is fit and proper to be appointed as a judge of the high Court. 5.5. The land Claims Court: the President of the land Claims Court and each of its judges: (a) must be a fit and proper person to be a judge of the land Claims Court;47 and 36 sec. 153(2)(a) of the labour relations act 66 of 1995. 37 sec. 153(2)(b) of the labour relations act 66 of 1995. 38 sec. 153(6)(a)(i) of the labour relations act 66 of 1995. 39 sec. 153(6)(a)(ii) of the labour relations act 66 of 1995. 40 sec. 153(6)(b) of the labour relations act 66 of 1995. 41 sec. 168(1)(a) of the labour relations act 66 of 1995. 42 66 of 1995. 43 sec. 168(1)(b) of the labour relations act 66 of 1995. 44 66 of 1995. 45 sec. 168(1)(c) of the labour relations act 66 of 1995. 46 sec. 36(2) of the Competition act 89 of 1998. 47 sec. 23(b) of the restitution of land rights act 22 of 1994. BRICS LAW JOURNAL Volume III (2016) Issue 4 132 (b) must be a judge of the high Court or be qualified to be admitted as an advocate or attorney,48 and has, for a cumulative period of at least 10 years, practised as an advocate or an attorney or lectured in law at a university;49 or (c) by reason of his or her training and experience, has expertise in the fields of law and land matters relevant to the application of the restitution of land rights act50 and the law of the republic.51 5.6. equality Courts: only a judge, magistrate or additional magistrate who has completed a training course as a presiding officer of an equality Court may, subject to the provisions of the Promotion of equality and Prevention of unfair Discrimination act,52 be designated as a presiding officer of an equality Court.53 5.7. The electoral Court: the members of the electoral Court consist of: (a) a chairperson, who is a judge of the supreme Court of appeal;54 and (b) two judges of the high Court;55 and (c) two other members who are south african citizens.56 5.8 Children’s Courts: the presiding officer of a Children’s Court must be a magist- rate.57 in terms of sec. 10 of the magistrates’ Courts act,58 any appropriately qualified woman or man who is a fit and proper person may be appointed as a magistrate. 5.9 maintenance Courts: any appropriately qualified woman or man who is a fit and proper person may be appointed as a magistrate. 5.10 in order to fulfil the need for the education and training of judicial officers, a south african judicial education institute was established by the south african Judicial education institute act59 to promote the independence, impartiality, dignity, accessibility and effectiveness of the courts by providing judicial education for judicial officers. 5.11. Traditionally, the function of a judge in south africa is to express or declare the law and not make law – iudicis est ius dicere sed non dare.60 under sec. 173 of the 48 south africa has a divided Bar similar to that of england, i.e. attorneys (solicitors) and advocates (barristers). 49 sec. 23(c)(i) of the restitution of land rights act 22 of 1994. 50 22 of 1994. 51 sec. 23(c)(ii) of the restitution of land rights act 22 of 1994. 52 4 of 2000. 53 sec. 16(2) of the Promotion of equality and Prevention of unfair Discrimination act 4 of 2000. 54 sec. 19(1)(a) of the electoral Commission act 51 of 1996. 55 Id. 56 sec. 19(1)(b) of the electoral Commission act 51 of 1996. 57 sec. 42(2) of the Children’s act 38 of 2005. 58 32 of 1944. 59 14 of 2008. 60 lucas C. steyn, Die Uitleg van Wette (Interpretation of Statutes) 1 (5th ed., Cape Town: Juta, 1981). DANIE VAN LOGGERENBERG 133 Constitution, the Constitutional Court, supreme Court of appeal and high Court, however, have the inherent power to develop the common law,61 taking into account the interests of justice. in addition, sec. 172 of the Constitution provides as follows in respect of the powers of the superior Courts in constitutional matters: (1) When deciding a constitutional matter within its power, a court – (a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and (b) may make any order that is just and equitable, including – (i) an order limiting the retrospective effect of the declaration of invalidity; and (ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect. (2)(a) The supreme Court of appeal, the high Court of south africa or a court of similar status may make an order concerning the constitutional validity of an act of Parliament, a provincial act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court. (b) a court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party, or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that act or conduct. (c) national legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. (d) any person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection. 5. The Process under this heading the following will be briefly discussed: (a) The principles underlying the process; (b) a typical opposed action in the high Court; (c) a typical opposed application in the high Court; (d) evidence in civil proceedings; (e) appeals; (f) Class actions; (g) alternative civil dispute resolution mechanisms. 61 The south african common (i.e. substantive) law is of roman-Dutch origin. BRICS LAW JOURNAL Volume III (2016) Issue 4 134 5.1. The Principles Underlying the Process62 The audi alteram partem principle prevails, in other words, throughout the process the parties must be afforded an equal opportunity to present their respective cases to each other and to the court. This entails that each party is entitled to be informed of the other party’s case so as, eventually, not to be taken by surprise at the hearing of the case. each party is in control of its case, in other words, the decision to institute or defend a case, and to determine the scope of the disputes, rest with the parties. each party also decides on the evidentiary material to be presented to court in support of its case. The hearing of the case must, as a general rule, take place in public. in action proceedings, the principle of orality prevails. This means that at the hearing of the case, the parties and their witnesses give oral evidence. The judge presiding over a case may not enter the arena and should be impartial and unbiased. The judge is under an obligation to give a reason and legally motivated judgment within a reasonable time.63 The following principles apply in respect of the rules of court: (a) Formalism in the application of the rules of court is not encouraged by the courts;64 (b) The object of the rules is to secure the inexpensive and expeditious com- pletion of litigation before the courts: they are not an end in themselves;65 (c) The rules should be interpreted and applied in a spirit which will facilitate the work of the courts and enable litigants to resolve their disputes in as speedy and inexpensive a manner as possible;66 (d) The rules exist for the court, not the court for the rules;67 62 See, in general, Wouter le r. de vos, Civil Procedural Law and the Constitution of 1996: An Appraisal of Procedural Guarantees in Civil Proceedings, 3 Journal of south african law 444 (1997); estelle hurter, Seeking Truth or Seeking Justice: Reflections on the Changing Face of the Adversarial Process of Civil Litigation, 2 Journal of south african law 240 (2007). 63 See, for example, strategic liquor services v. mvumbi no 2010 (2) sa 92 (CC) and exdev (Pty) ltd v. Pekudei investments (Pty) ltd 2011 (2) sa 282 (sCa). 64 Trans-african insurance Co ltd v. maluleka 1956 (2) sa 273 (a) at 277a-B; maharaj v. Barclays national Bank ltd 1976 (1) sa 418 (a) at 423e; Federated Trust ltd v. Botha 1978 (3) sa 645 (a) at 654C; rabie v. De Wit 2013 (5) sa 219 (WCC) at 222e-223a. 65 hudson v. hudson 1927 aD 259 at 267; Federated Trust ltd v. Botha, supra, at 654C-e; eke v. Parsons 2016 (3) sa 37 (CC) at para. [40]. 66 ncoweni v. Bezuidenhout 1927 CPD 130. 67 republikeinse Publikasies (edms) Bpk v. afrikaanse Pers Publikasies (edms) Bpk 1972 (1) sa 773 (a) at 783a-B; standard Bank of south africa ltd v. Dawood 2012 (6) sa 151 (WCC) at 159e; mukaddam v. Pioneer Foods (Pty) ltd 2013 (5) sa 89 (CC) at para. [32]; eke v. Parsons, supra, at paras. [39]–[40].