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.
CIVIL MATTERS (Dec. 2006) [hereinafter SA LAW REFORM REPORT],
available at,
at ix.
Obtaining Discovery Abroad
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 & INTL L.J. S. AFR. 99, 105 (1969).
4. Foreign Courts Evidence Act 80 of 1962 § 2(1) (S. Afr.), available at
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,

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