South Africa

• Pages: 337-352

337

CHAPTER XVI

SOUTH AFRICA

A. Introduction

South Africa’s legal system is, as with that of the United States,

adversarial. A key part of the adversarial process in both systems is

discovery. Discovery is the process whereby each party requests

information from the other. Accordingly, South African courts are

generally amenable to United States discovery requests. The difficulty the

U.S. litigant is likely to encounter is that South Africa’s approach to

foreign discovery requests can be confusing as discovery methods are

fragmented and often overlapping.1

A U.S. litigant participating in a trial (but not an arbitration) may

secure witness testimony or documentary evidence in South Africa using

the following methods: (1) bringing an application before a South African

court in terms of the Foreign Courts Evidence Act, 1962 (Foreign Courts

Evidence Act); (2) sending a letter of request, directed through a foreign

state or territory, to the South African state that requests evidence from a

witness in accordance with section 33 of the Superior Court Act, 2013

(Superior Court Act); (3) sending a letter of request in terms of Chapter 1

of the Convention on the Taking of Evidence Abroad in Civil or

Commercial Matters (Hague Evidence Convention); (4) appointing a

commissioner following Article 17 of the Hague Evidence Convention; (5)

bringing an application under the Promotion of Access to Information Act,

2000 (Promotion of Access Act) before the onset of litigation; and (6)

bringing a search and seizure application, prior to litigation.

1. SOUTH AFRICAN LAW REFORM COMMISSION PROJECT, 121 CONSOLIDATED

LEGISLATION PERTAINING TO INTERNATIONAL JUDICIAL CO-OPERATION IN

CIVIL MATTERS (Dec. 2006) [hereinafter SA LAW REFORM REPORT],

available at http://www.justice.gov.za/salrc/reports/r_prj121_2006dec.pdf,

at ix.

Obtaining Discovery Abroad

338

B. The Foreign Courts Evidence Act

Under section 2 of the Foreign Courts Evidence Act, a foreign litigant

or a trial court may apply to a South African high court2 for an order

allowing the examination of a witness before a specific person for the

purposes of pending foreign litigation before a court, but not for a pending

arbitration. This process requires instructing South African attorneys in

the matter.3 The following conditions must be met: (1) the foreign court

has competent jurisdiction; (2) there is litigation pending before the

foreign court; (3) the foreign court wishes to obtain evidence in relation to

the pending litigation; and (4) the witness from whom the foreign court

wishes to procure evidence is within the jurisdiction of the division of the

South African high court before which the application is brought.

Where it is a foreign litigant who brings the application, that litigant

must show that the foreign court is “desirous of obtaining evidence in

relation to [the foreign litigation].”4 The litigant may do so by, for instance,

attaching an order of the foreign court that evidence be obtained in South

Africa, properly sealed, signed, or otherwise authenticated. Other

supporting material, however, should also suffice.5 Further, the litigant

must prove that the foreign court has jurisdiction over the matter. This

could be achieved by submitting a certificate to that effect from a foreign

court, but any other convincing evidence could be proffered.6 If the

requirements set out above are met, the court may grant an order (unless

the provision of the evidence sought would contravene section 1 of the

Protection of Businesses Act, 1978).7

The court will order not only the examination of the witness, but also

identify the individual before whom such examination is to take place.

Ordinarily, the court will order that a magistrate hears the evidence. 8 If the

2. Although § 2(1) of the Foreign Courts Evidence Act refers to “provincial

or local division of the Supreme Court,” the Constitution of the Republic

of South Africa, 1993 and 1996, renamed the former provincial and local

division of the Supreme Court as the high courts.

3. J.F. Uys, Continuation of Civil Proceedings in a Foreign Country, 2

COMPARATIVE & INT’L L.J. S. AFR. 99, 105 (1969).

4. Foreign Courts Evidence Act 80 of 1962 § 2(1) (S. Afr.), available at

https://www.gov.za/sites/default/files/gcis_document/201505/act-80-

1962.pdf.pdf.

5. Uys, supra note 3, at 105-06.

6. Id.

7. Foreign Courts Evidence Act § 2(2). See infra section F.

8. Prisca Christina Léonie Schleiffer Marais, Cross-border Taking of

Evidence in Civil and Commercial Matters in Switzerland, South Africa,