Legal costs in the South African legal system

This is the second part of our introduction to our civil court system. These articles are intended to introduce you to some of the concepts you will encounter in our civil court system. These principles are not applicable in every case and we urge you to discuss them with your attorney in the context of your specific case.

One of the more significant consequences of approaching a Magistrates Court as opposed to a High Court is your legal costs. Both courts apply a tariff of court fees with different scales. Perhaps the easiest way to understand these tariffs is in relation to medical aid rates. If you belong to a medical aid you will know that when you visit a doctor your medical aid will pay only a portion of the doctor’s actual fee (unless you have a doctor who charges medical aid rates). You then have to foot the bill for the balance. Our court tariffs work in a similar way. If you are awarded legal costs in a court case (costs usually follow the result so if you win, you are awarded legal costs), your costs have to be “taxed” before you can recover from your opponent. This means that an officer of the court called a “taxing master” will compare your actual legal costs to tariff and either allow or disallow certain amounts that you wish to recover. Your costs will be set out in a document called a “bill of costs”.

As an example, the tariff in the High Court sets a rate of R125 per quarter hour for an attorney to attend a consultation. This works out to R500 per hour. You will often find that your attorney charges you more than R500 per hour for his/her attendances and the difference between the tariff rate of R500 per hour and what your attorney charges you is called the “attorney-client” differential. This differential is analogous to the difference between medical aid rates and private rates your doctor may charge you. You can only recover the amount the taxing master allows you to recover based on the tariff. This figure is known as your “taxed costs”.

It does get a little more complicated as there are different scales of legal costs. The figures mentioned above form part of the “party and party” scale (the most common scale). Other scales allow you to recover more of your costs and include “attorney and client” costs (you may have seen references to this scale of costs on credit agreements you may have signed) but these scales have to either have been specifically agreed to by the parties or specially ordered by the court.

The tariff in the Magistrates Court is lower than in the High Court so if your attorney is charging you the same hourly rate for work in the Magistrates Court as he/she charges in the High Court, you are actually entitled to recover less of your actual costs in the Magistrates Court, relatively speaking.

An introduction to our courts and court procedure

While most people have a vague idea about our court structure, I suspect not many people know enough to make informed decisions about the forum they litigate in and more or less what to expect. This tends to unnecessarily mystify the litigation process and scare people away from our court system. I’d like to shed some light on our civil court system and give you, my visitors, a basic knowledge of our civil procedure over the course of a few articles on this website.

I must just caution you that these articles are intended to give you a basic idea what to expect from our civil court system. It is mostly theoretical and practical experience of our court system may be fairly different. Although our court system is governed largely by rules, the system is fairly fluid and flexible. It has to be, for many reasons. That fluidity and flexibility can give rise to quite a bit of frustration when used to thwart a litigant but this is really just the way the system works.

The starting point is really a basic introduction to our civil court structure. When I refer to our “civil” court structure I am referring to the court structure that we use in private or civil litigation. For the most part this type of litigation involves disputes over contracts or instances where one party causes the other to suffer some form of loss (usually financial). These disputes are usually between two private parties (as opposed to criminal matters where the State prosecutes a private party).

There are two main court structures in South Africa. There are the so-called “lower” courts and there are “superior” courts. The lower courts generally comprise Magistrates Courts which are presided over by judicial officers called Magistrates (there are also courts called Small Claims Courts which I will deal with in a separate article). The superior courts comprise the various divisions of the High Court, the Supreme Court of Appeal and the Constitutional Court. Superior courts are presided over by judges. Our court structures and the composition of those courts is largely set out in Chapter 8 of the Constitution of the Republic of South Africa, 1996.

The two courts you would usually institute proceedings in would, save for certain special types of cases, usually be either the Magistrates Court or the High Court. The considerations which generally determine which court you approach first are detailed in the Magistrates Court Act and the Magistrates Court Rules of Court (a set of rules that govern the court proceedings in the Magistrates Court). Generally speaking, you can launch the following proceedings in a Magistrates Court (this is not intended to be an all-inclusive list and may not be applicable in certain instances):

  • actions in which you would claim delivery or transfer of either movable or immovable (for example, land) property;
  • actions to eject the occupier of a premises;
  • actions to determine a right of way;
  • actions arising out of a “liquid document” (where the amount claimed appears clearly from the document itself) or mortgage bond;
  • actions arising out of a credit agreement;
  • applications for the liquidation of a close corporation; and
  • general actions claiming compensation.

Except for where there are certain consents to the contrary, proceedings in the Magistrates Court are limited to matters where the value of the proceedings is less than R100 000.

As a litigant, you are always free to approach a High Court directly. Judges discourage litigants skipping Magistrates Courts by only allowing costs on the Magistrates Court scale (more on that later) as this could flood the High Courts. While the Magistrates Court is a “creature of statute” and its processes are governed by the Magistrates Court Act and its Rules of Court (not to mention other legislation), the High Court has what we call “inherent” jurisdiction to hear whatever matter it wishes to hear barring those matters which it is not permitted to entertain (certain types of constitutional matters are reserved for the Constitutional Court). You can launch virtually any form of proceeding in the High Court and the judge (or judges) have the ability to at least consider whether to hear the matter).

Magistrates Court and High Court are also referred to as courts of first instance because you can launch completely new proceedings in these courts. This is in contrast to the Supreme Court of Appeal and the Constitutional Court which are mostly courts of appeal. These two courts of appeal mostly hear appeals from the High Court where a judgment has already been handed down in a matter. As an aside, there are instances where the Constitutional Court can be approached directly but these instances are few.

Supreme Court of Appeal

We have a number of different courts in our court structure. The highest court in South Africa for all matters except for constitutional matters is the Supreme Court of Appeal. Here is some information about this court from its website:

All constitutional matters are dealt with by the Constitutional Court, the highest court in the land, which is situated in Johannesburg.

The Supreme Court of Appeal of South Africa, the successor of the Appellate Division of the Supreme Courts of South Africa was created by the Constitution of 1996. According to the Constitution –

  • it functions only as a court of appeal
  • it may decide any matter on appeal and,
  • it is except for constitutional matters, the highest court of appeal

It is composed of the President and Deputy President of the Supreme Court of Appeal and a number of judges of appeal determined by an Act of Parliament. The Supreme Court of Appeal has jurisdiction to hear and determine an appeal against any decision of a High Court.

Decisions of the Supreme Court of Appeal are binding on all courts of a lower order, and the decisions of the High Courts are binding on Magistrates’ Courts within the respective areas of jurisdiction of the divisions.

Whereas previously the head of the Appellate Division was the chief justice, this is no longer the case. The Chief Justice of South Africa is now located in the Constitutional Court.

The seat of the Supreme Court of Appeal is at Bloemfontein. Provision exists for a session of the court at some other place when by reason of exceptional circumstances it is expedient to hold its sitting there. Its process runs throughout the Republic and its judgments and orders have effect and are executed in the areas of other divisions as if they were original judgments or orders of these divisions.

The Court sits in panels of five or three Judges, depending on the nature of the appeal. The composition of the panels differ for each case. The senior judge on each panel presides in that case and decides which judge is to write the judgment (or opinion) of the court. There may be more than one judgment in each case if there is a difference of opinion. The decision of the majority is the decision of the Court. Judges and counsel are robed in court.

If you are interested in some of the other courts in our court system, here are some informative links: