This blog has already posted about litigation in Africa’s most populous country and its second most populous country. But what about its fifth most populous? Well, now it has. I was unable to learn much about South African litigation by watching the comedy of Trevor Noah or listening to the album Graceland by Paul Simon (that featured several South African musicians). So, in search of knowledge on the subject, I spoke with Graham Girdwood, an attorney at Group 621 in Johannesburg, to learn about what litigation is like in South Africa.

Why should you continue reading this post about litigation in South Africa?

You’re want to know whether you need to wear a robe for your online court appearance in South African court.
You want to know when juries were abolished in South Africa.
You want to see a picture in which people are driving on the left side of the road.

Graham Girdwood is an attorney at Group 621 in Johannesburg.

Can you tell me about the kinds of disputes you handle in your legal practice?

The mainstay of my practice is general commercial litigation. The matters I handle involve banking, insolvency, contractual disputes, construction and aviation disputes, complex disputes between large corporations, administrative law, and a little bit of constitutional law.

What type of clients do you generally represent in disputes?

My clients are pretty much all large corporations.

Besides Microsoft Office, what software do you use in your practice?

Probably just Adobe Acrobat Pro.

What books and websites do you use for legal research?

Our firm has a physical library with a large number of books. Many are published by Juta, Westlaw, and Lexis South Africa.

For websites: the LexisNexis SA website is popular, as are websites with UK law reports. Another important website is http://Saflii.org

How often do you cite UK law in your work?

South African courts cite UK contract law and UK’s rules for evidence. They do this because UK law offers a large body of precedent that courts can follow. They also do this because a lot of the laws and rules in South Africa come from the UK system, since those laws stayed entrenched in the country when it became independent from the UK.

Image credit: https://en.wikipedia.org/wiki/Courts_of_South_Africa#/media/File:Jo'burg_High_Court.jpg

Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?

Technically, barristers do not file pleadings with the court. They are independent practitioners that work for lawyers. So while barristers write and sign pleadings, lawyers submit them.

Lawyers use the CaseLines website to submit pleadings in Johannesburg, but in other provinces, lawyers need to submit pleadings in person.

Does South Africa have specialized courts that only hear commercial cases?

No. But in one of the courts in Johannesburg, litigants can ask for their case to be certified as a commercial matter. Although this means that the case stays in the same building, certification theoretically means the case gets assigned to a judge with experience in commercial matters. But in practice, certification does not often result in assignment to a judge with deep commercial experience.

South Africa also has specialized Labor Courts. How do those courts differ from other South African courts?

The substantive law is the same in Labor Courts, but they have their own rules under the Labor Relations Act.

Who decides the facts in a commercial case? Is it a judge or a jury?

South Africa has no jury trials; they were all abolished in 1961. So judges decide commercial disputes.

Generally speaking, how many pages are the complaints or initial pleadings you see in your work?

This depends on whether the lawsuit is started by action or by application.

Lawsuits that are “started by action” lead to a trial. Those that start “by way of application” lead to the court considering sworn affidavits instead of live witness testimony.

The initial pleadings in cases started by action are typically twenty pages, excluding annexes. One recent case, however, had 50-60 pages of initial pleadings.

The initial pleadings in cases that start by application are much longer because they contain sworn statements.

Generally speaking, how long does it take for a case to go from complaint to judgment?

The process of going from complaint to judgment has become considerably streamlined in the past few years. A litigant could obtain a judgment now in 18 months.

South Africa has eleven official languages. What language or languages do the courts use?

The Chief Justice has mandated that all proceedings in South African courts take place in the English language because budget challenges prevent the use of other languages. This doesnt prevent parties from arguing in Afrikaans, but English is far more common.

Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?

In pretrial discovery in South Africa, litigants can get documents from the opposing side.

But in our trial system, we don’t have pretrial depositions. In a lot of jurisdictions, trials here would be considered a trial by ambush. But this makes us better on our feet, since we have no notice of what opposing witnesses will say until trial.

Expert witnesses, however, provide reports before trial that explain what their testimony will be.

If you win, does the other side reimburse your attorneys’ fees?

Courts do award attorney’s fees to prevailing parties. They follow a scale of costs to determine how much to award. Usually courts award about 20% of a client’s out-of-pocket costs when they prevail.

But as a barrister, the client does not hire me directly. Instead, an attorney hires a barrister, and the litigant will seek to recover the costs that the attorney paid for the barrister.

There are some direct-access counsel, which are barristers that work directly for clients. But to be one, you must be specially certified.

Are the courts in South Africa open to the public? Can ordinary people watch a commercial trial?

Courts open to the public and people can attend trials.

Do you believe that South African courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?

For a strength, the rule of law in South Africa is very much alive. Judges are fiercely independent and distant from the corruption that is endemic to the rest of the government.

For weaknesses, the court system struggles to attract good judges. Thirty years ago, it would have been the pinnacle of a lawyer’s career to go to the bench to become a judge. But now, fewer practioners want to be on the bench.

Since there is a perception that the court system is not attracting the best judges, arbitration provisions are very popular. As a result, the courts are losing their rights to adjudicate matters, as lawyers find arbitration to be quicker, even if it is more expensive. Lawyers may also prefer arbitration because, in courts, litigants may get judges with criminal court experience instead of experience in high-stakes commercial disputes.

There are also funding problems because little of the country’s national budget goes to infrastructure. Court building maintenance and upkeep is lacking. And our judges pay out-of-pocket for materials and for online access to judgments.

How often do you go to the courthouse?

The last time I was physically in court was three years ago. Now, my appearances are online because of covid. But I am having a physical appearance soon.

In-person appearances are more ideal because you lose the feel and touch of of them during remote appearances.

When you are there, do you need to wear a special robe or wig?

I do. Lawyers need to be robed in court, even when the court proceeding is taking place remotely.

I have attained silk status, which 5% of legal practitioners in the UK achieve. This means that “SC” (which means “senior counsel”) appears after my name. As a result, my court robes are made of silk. Other lawyers also wear robes, but they are different robes that are similar to the kind that judges wear in the United States.

Lawyers in South Africa used to wear wigs in court, but they don’t anymore.

Litigation in South Africa