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LAWYERS IN SOUTH AFRICA Afrikaans isiXhosa isiZulu Setswana This is the home page, containing extensive general information about Lawyers and the Law in South Africa. Here you can find a lawyer or find a South African law firm, searching per location. For information on specific legal subjects select and click on your subject of choice above. Whether you need to consult with an Attorney as a matter of urgency or might only need to do so in the future, now is a good time to learn more about Lawyers and the Law in South Africa. - This can assist you in making informed decisions when you require the services of an Attorney! 1. How much do Lawyers charge and how can I reduce my fees and expenses? 2. What if I cannot afford the services of a Lawyer? 3. How does the No Success – No Fee structure work when dealing with an Attorney? 4. What factors must be considered before taking a legal dispute to court? 5. What are the different types of damages one can claim for? 6. My Lawyer won my case, including costs. He has now presented me with a bill. How does this work? 7. What is some of the day-to-day business that a lawyer undertakes? 8. How does a person qualify to practise as an Attorney in South Africa? 9. What are the functions of a notary and a conveyancer? 10. How are the main bodies of law categorized in South Africa? 11. What is the structure of the courts in South Africa? 12. What is the function of the Law Society? 13. Does money held in an Attorneys Trust Account pay interest? 1. How much do Lawyers charge and how can I reduce my fees and expenses?
Introduction: Since 1994 South Africa functions as a constitutional democracy – which means that all laws are subject to The Constitution. Read more here about Constitutional Law and The Rule of Law. Following the English tradition, the legal profession in South Africa is divided into the ‘bar’ and the ‘side bar’. Advocates (called barristers in England) make up the ‘bar’ and are commonly referred to as ‘counsel’. They specialize in preparing court cases, appearing before courts and other tribunals and giving legal opinions. They are not permitted to form partnerships and can only act on behalf a member of the public if briefed by that person’s attorney. In December 2016 there were 7620 practising advocates in South Africa, who all fall under the auspices of the General Council of the Bar of South Africa. Attorneys (called solicitors in the UK) make up the ‘side bar’ and are commonly referred to as ‘lawyers’. Attorneys are the general practitioners of law, performing all types of legal work. They manage legal cases, deal directly with their clients and practise as sole proprietors or in small, medium, or large partnerships. In December 2016 there were 24 912 practising attorneys in South Africa, who all fall under the auspices of The Law Society of South Africa. This website is about Attorneys. A Legal Practice Council will come into being on 1 February 2018 which will regulate the attorney and advocates profession under one roof.
Legal Costs are attorneys’ and advocates’ fees that a client has to pay. Your lawyer will at the outset give you a broad indication of the cost of his/her services. Non-Litigious matters - for non-litigious matters (a case that does not reach court), the fees will be as agreed with your attorney, and are usually based on a hourly fee basis (or part thereof) which fee will be disclosed to you before the attorney commences work. Civil Litigation matters - for matters involving civil litigation, whether in the Magistrate’s Court, the High Court or the Supreme Court of Appeal, fees are laid down on a fixed scale in an official tariff. The latest amendments took effect on 1 November 2017. If the client agrees at the outset and is fully informed, the attorney may charge a higher rate. Conveyancing costs - conveyancing costs are laid down on a fixed scale in an official tariff. If you are considering purchasing immovable property, you can calculate your Attorney, Transfer and Bond costs. If you are a non-resident considering purchasing property in South Africa, you can read more here. If you are a first-time home buyer, you may qualify for a subsidy, and you can read more here. Contingency Fee arrangement - if you have entered into a ‘contingency fee’ arrangement with your attorney, i.t.o the Contingency Fees Act, whereby the attorney will not charge you a fee unless you win the case, the attorney may be paid an additional fee or charge you a percentage of the proceeds recovered from the party he/she sued. See question 3 for further information Criminal Law matters - for Criminal cases, a lawyer can charge you hourly, daily or a global fee to handle the entire matter- see our section on Criminal law for more details. Nevetec is a Company that specializes in expunging criminal records or obtaining SAPS clearance certificates.
Reducing your legal fees and expenses If you have discussed the basis and nature of legal fees and costs with your lawyer, you have taken the necessary fist step to control your legal fees and expenses. There are, however, a few things you can do during the course of the matter to help you manage the overall fees and costs: Get organized. During your initial interview, bring as much information as you can and share it with your lawyer. Write down the questions that you want your lawyer to answer. This could help cut down the time the lawyer will spend investigating your matter and gathering information. Be thorough. Tell your lawyer all the facts. Do not assume that your lawyer knows them all. In order to deal with your matter efficiently, it will help your lawyer to know as much as possible about your matter. All your information ought to kept in confidence. Be efficient. Try to be as concise as possible. Communicate. You need to consult with your lawyer regarding your matter and prepare for meetings. If something new happens you should inform your lawyer. It may change the approach takes with the matter, saving you and your lawyer time and money. Examine your Bill. Make sure that your bill does not contain costs and expenses beyond those you agreed to pay. Bills of Cost is one of SA’s leading legal costs consultants where you can read more. Top of Page 2. What if I cannot afford the services of a lawyer?
Adjudicators and Ombuds - they can help you with: Banking problems - contact The Ombudsman for Banking Services. ShareCall: 0860 800 900 • Telephone: 011 712 1800 • Fax: 011 483 3212 • Email:
[email protected] Community scheme-related problems - contact The Community Schemes Ombud Service, which is a statutory dispute resolution for owners and residents of community schemes • Email:
[email protected] Consumer related problems - contact The National Consumer Commissioner. Toll-free: 0860 003 600 • Telephone: 012 428 7000 • Fax: 086 758 4990 • Email:
[email protected] Consumer related problems - you can also contact The Consumer Goods and Services Ombud which is a voluntary dispute-resolution scheme that has jurisdiction only over retailers, wholesalers and manufacturers that have agreed to subscribe to the CGSI Code of Conduct. • Email:
[email protected] Credit Transaction problems - contact The Credit Ombud. MaxiCall: 0861 662 837 • Telephone: 011 781 6431 • Fax: 086 674 7414 • Email:
[email protected] Debt Counselling problems - contact The National Credit Regulator who also deals with disputes that are not resolved by the Credit Ombud. ShareCall: 0860 627 627 • Email:
[email protected] Employment problems - contact The Commission for Conciliation, Mediation and Arbitration Telephone: 011 377 6650 / 011 377 6600 • Fax: 011 834 7351 • Email:
[email protected] Fiduciary problems - contact The Fiduciary Institute of South Africa (Fisa), which is a self-regulating body in fiduciary matters, such as wills, trusts & estate planning. Tel: 082 449 2569 • Email:
[email protected] Financial Advice problems - contact The Ombud for Financial Services Providers. Telephone: 012 470 9080 or 012 762 5000 • 012 348 3447 • Email:
[email protected] Investment problems - contact The Financial Services Board, which regulates the financial services industry. ShareCall: 0800 110 443 • Telephone: 012 428 8000 • Email:
[email protected] Landlord and Tenant problems - contact The Housing Tribunal Telephone: 011 650 5035 / 0800 046 873 • Fax: 011 630 5057 • Email:
[email protected] Life Assurance problems - contact The Ombudsman for Long-Term Insurance. ShareCall: 0860 662 837 • Telephone: 021 657 5000 • Email:
[email protected] Medical Scheme problems - contact The Council for Medical Schemes which is a statutory body that supervises medical schemes. MaxiCall: 0861 123 267 • Email:
[email protected] Motor Vehicle problems - contact The Motor Industry Ombudsman of South Africa is an independant institution that resolves disputes between the motor industries & their customers. • Email:
[email protected] Retirement Fund problems - contact The Pension Funds Adjudicator. Telephone: 012 748 4000 or 012 346 1738 • Fax: 086 693 7472 • Email:
[email protected] Short-Term Insurance problems - contact The Ombudsman for Short-Term Insurance. ShareCall: 0860 726 890 • Telephone: 011 726 8900 • Email:
[email protected] Tax Problems - contact The Tax Ombud who can help you to resolve administrative and procedural problems with SARS. ShareCall: 0800 662 837 • Telephone: 012 431 9105 • Email:
[email protected]
Legal Insurance - Most of us will experience legal problems during the course of our life. If you are concerned about legal costs, then legal insurance may be worthy of your consideration.LegalWise is the pioneer in providing legal assistance, legal counselling and cover for legal expenses for civil, criminal and labour related matters to their members.
Legal Assistance - Legal Aid SA is mandated by the Constitution to provide legal assistance in criminal and civil matters to the poor and vulnerable at State expense. Here is a list of Legal Aid SA offices, and here is a list of Magistrate Courts. Because Legal Aid SA gets tax money to spend on the poor, it must make sure the person applying for legal aid really is poor. This is called a Means Test. Each person who asks for help must say how much money he or she gets every month as wages or salary and what that person owns, like a car or a house. Here is a link with information on who qualifies for Legal Aid SA help. The Legal Resources Centre - The LRC is an independent non-profit law centre which seeks to use the law to pursue justice, democracy and the realization of socio-economic rights. This they do for the vulnerable and marginalised, including poor, homeless and landless people and communities who suffer discrimination by reason of race, class, gender, disability or by reason of social, economic, and historical circumstances. They employ over 65 lawyers and staff from offices in Johannesburg, Durban, Pretoria and Grahamstown and often work together with other civil society organizations. Lawyers for Human Rights - The LHR is an independent human rights organization with a lengthy record of human rights activism and public interest litigation in South Africa. LHR uses the law as a positive instrument for change and to deepen the democratization of the South African society. To this end they provide free legal services to vulnerable, marginalised and indigent individuals and communities, both non-national and South African, who are victims of unlawful infringements of their constitutional rights. They have Law Clinics in Johannesburg, Pretoria and Durban, as well as offices in Stellenbosch and Upington. ProBono.Org - ProBono.Org facilitates free legal services from the private legal profession for the poor. Some of their services includes providing pro bono legal assistance to over 6 500 clients per annum via their Johannesburg and Durban offices; running a general legal clearing house where clients are consulted, assessed and referred to private lawyers for free legal assistance and holding free weekly legal clinics for refugees, people with housing problems, people who experience police brutality, consumers with consumer law problems, NGOs and CBOs who require legal assistance, and small business that need start up legal assistance, amongst others. Small Claims Court - If you have a claim against someone up to a value of R15 000 you can approach the Small Claims Court - You cannot use an attorney in the SCC but you can get advice from an attorney to prepare for your case. The services of the SCC are free but the court charges a small fee to cover the cost of the summons and the fee of the Sheriff of the Court. A Commissioner presides over the proceedings and decides who is right and who is wrong. If your claim is for more than R15 000 you can give up part of the claim so that it is R15 000 or less. Here is a diagram of proceedings through the small claim courts. Attorney Pro Bono Services - Not for Profit Organizations (NPO’s) as well as Indigent persons, (those persons with very little or no money) who require legal assistance may apply to the Provincial Law Societies who will assess their applications and forward them to Attorneys and Law Firms who have expertise in your area of concern. Attorneys do the work on a pro bono basis as part of a community service. Please note: just because your NGO applies does not automatically mean you will be assisted. As a general guide, it will depend on the nature of the legal assistance required, whether the NGO is formally constituted, and has audited financial statements to enable the Law Society to determine whether the NGO can afford to pay its own legal fees.
Victim of human rights abuses, unfair discrimination, hate speech or harassment? Equality Court - you may approach the Equality Court. Any person or Association acting on its own behalf or on behalf of others can bring a case to the Equality Court. These courts have the power to conciliate and mediate, grant interdicts, order payment of damages or order a person to make an apology. Discrimination against you could be on one of the following grounds: race, gender, sex, pregnancy, marital status, ethnic or social origin, age, colour, sexual orientation, age, disability, religion, culture, language, or birth. It is not necessary to have a lawyer if you bring a case to the Equality Court. Discrimination in the workplace is dealt with by the Labour Courts. The South African Human Rights Commission - you may also approach The SAHRC, who investigates human rights abuses. They can also arrange for someone to have a lawyer to defend their rights, and it can take cases to court. The SAHRC is an independent body and is only accountable to the Constitution and Parliament. Anyone can make a complaint to the SAHRC and you can do so without an Attorney. According to the Commission allegations of racism make up 80% of the 10 000 human rights complaints it receives annually on average. The Commission on Gender Equality - if you feel that you have been discriminated against because of gender or sex, you may file a complaint with The CGE. The CGE is an independent body accountable only to the Constitution and Parliament. Anyone can lodge a complaint with them and you can do so without an attorney. Public Protector - You may approach the offices of The Public Protector if you want them to investigate claims about any of the following: poor administration or government, government officials who abuse their powers, improper conduct of public officials, and corruption of public funds by public officials. The Public Protector can also resolve disputes, and refer matters to other agencies.
Resolving disputes without going to court Many legal problems can be resolved without going to court and this is usually a much cheaper option for settling disputes. Different ways of trying to solve disputes without going to any of the courts include: Negotiation – meaning that people who have a problem talk to each other about their problem and try to solve it by coming up with a solution which suits both sides. Mediation – mediation happens when people with a problem agree to have a third person act as a go-between to help them settle their problem. You can read more here why mediation is preferable to litigation. Mediation saves both time and money as it aims to avoid costly litigation proceedings. Equillore is one of the leaders in Alternative Dispute Resolution (ADR) in South Africa and offers mediation services in the Commercial, Public Sector, Labour and Consumer Law fields. Arbitration – takes place when people who have a problem agree to have a third person (called an arbitrator) to listen to their arguments and make a decision which both parties agree.
Last will and testament - The Law Society of South Africa together with its constituent members, organizes a National Wills Week every year, with many law firms and attorneys offering their services, pro bono, free of charge, for members of the public who wish to have a will drawn up by experienced professionals. This is one of their annual national intitiatives. Pro Scripto are one of the leading forensic document examiners in SA – if you have doubt regarding the authenticity of a document (such as a will) a signature or handwriting.
Litigation funding - in 2004 champerty ( the term that recognized litigation funding as illegal) was now declared legal when the Supreme Court of Appeal allowed for external funding in legal disputes. While lawyers are not allowed to take more than 25% of the total settlement, there is no law in South Africa that stipulates how the money awarded should be split between the financial backer and the plaintiff. There are now a few private entities in South Africa who invest in legal disputes, purchasing claims or judgements, 'co-investing' with the creditor or claimant or funding the litigation, negotiation and settlement of a claim. The firm financing the litigation should not also be the attorney of record, as this situation could create a conflict of interests. It could be in the attorney's interest to settle a case where there was little chance of winning, whereas an early settlement may not be to the greatest advantage of the plaintiff. Christopher Consulting offers a comprehensive range of litigation (funding) solutions and you can read an overview of their services here.
Class Action Lawsuit - a class action can broadly be described as one involving an abusive practise on a large scale. Before a class action can be instituted one first has to successfully apply to court to be certified as a class. The first successful class action was brought by bread distributors who argued the bread distribution pricefixing case in the Constitutional Court in 2013. Meanwhile in August 2014 Transnet pensioners got the go-ahead to proceed as a class action against the state-owned freight and logistics group and two retirement funds that it sponsored. Pensioners receiving a pension from these funds will automatically be included in the class action unless they opt not be part of it.
Legal Information - A lot of legal information is now available on-line without the need to consult with an attorney – such legal information includes: Company Search, Credit Enquiries, Director Search, Deed Search, Consumer Tracing and Debtor Management. Legal City is one of SA’s leading on-line legal information providers. Kilgetty Secretarial Services is one of the top company secretarial services in South Africa. Liquor Buzniz Consultants are one of the leaders in liquor licence registration in South Africa. Legal Contracts - We do not recommend that you use ‘off the shelve’ contracts when entering into important transactions such as buying, selling, leasing or letting property – for this you will need to consult with an attorney. University Legal Clinics - most university law faculties have legal clinics to which consumers can bring complaints. – Juta Law is the leading legal textbook publisher in South Africa. Business Rescue – you can possibly prevent insolvency of your Company or Close Corporation if experiencing temporary cash flow problems by considering business rescue proceedings under the new Companies Act –you can read more here. Top of Page 3. How does the No success-No Fee structure work when dealing with an attorney? This is also referred to as a contingency fee arrangement which means the Attorney or Law Firm will only charge you a fee if they are successful in your case. This will constitute a contingency fee arrangement in terms of the Contingency Fees Act, 1997. (Act no 66 of 1997) Should the lawyer lose your case, you will therefore not be liable for any costs. If the Attorney is successful he/she will be entitled to charge you an additional fee or a percentage of the proceeds from the party that was sued. If the success fee is higher than the Attorneys’ normal fee, such higher fee may: Not exceed the Attorney’s normal fee by more than 100 per cent. In the case of a claim sounding in money, not exceed 25 per cent of the total amount awarded or any amount by the Client in consequence of the proceedings. The contingency fee could apply in the following types of matters: Claims for legal liability Claims against the Road Accident Fund ( RAF ) Claims for medical malpractice Claims for public legal liability, for example, claims against the Ministers of Police, Health, Transport and SANRAL. The initial consultation to evaluate your claim is usually for free. See our section on Personal Injury Law for more details. Top of Page 4. What factors must be considered before taking a legal dispute to court? If you are unable to settle a dispute with another party through the process of negotiation, and if no other legal machinery is available, you can seek redress in the courts. Whatever the circumstance, anyone who is party to a dispute has a remedy if he either has a right that has been infringed, or has a valid defence to a claim brought against him. This principle is expressed in the maxim Ubi jus ibi remedium – where there is a right, there is a remedy. However the answer to a claimant’s question: ‘Do I have a right?’ is only the first step in the initiation of legal proceedings. Other questions that must be answered are: Which court must be approached? Also important in this regard is the Monetary Jurisdiction for causes of action in the different courts, and which were last amended in I June 2014. Read more about the monetary jurisdictions of both the District Courts and the Regional Courts. Which form must the proceedings take? What remedy must be sought? What documents must be sought? What notice must be given to the other party? What evidence must be produced in court? What procedure must be followed in court? What must be done to enforce any judgement the court may take? What court may be appealed to if a judgement is unfavourable? Top of Page 5. What are the different types of claims for damages and how are they assessed? If you suffer injury, loss or damage as a result of someone else’s action or failure to act, you can claim damages or compensation from that person if you can prove: That he committed a breach of contract, or That he committed a civil wrong (delict) such as personal injury or defamation Breach of Contract – damages for breach of contract, such as buying and selling, are awarded on the principle that, although through payment, the injured party must be placed in the same financial position he would have been had the contract not been properly performed, whether or not the breach is serious enough to justify cancelling the contract. The damages that can be recovered in an action are the actual monetary loss (damnum emergens) and monetary profit (lucrum cessans) not made. See our section on Contract law for more details. Injury – generally, damages for injury arising out of delict (civil wrong) denote the difference between the present financial state of the plaintiff and the state he would have been in had the delict not taken place. The damages cover the actual loss, probable future loss, and compensation for pain and disability. See our section on Personal Injury law for more details. Defamation – where the plaintiff’s reputation has been impaired compensation is paid for the resultant insult, indignity and suffering. See our section on Defamation law for more details. Damage to property - where your property has been wrongfully damaged or destroyed, your damages might be assessed on the basis of the loss in value of your property when it was damaged. The cost of repairs may be a suitable reciprocal measure if it is necessary and fair, if it does not exceed the cost of replacement and if it will restore the property to its previous state. Although you can also claim compensation for loss and use of profits, the loss must not be too remote-it must be within the foresight of a reasonable person-and you must take reasonable steps to reduce it. Damages after death – it is possible to institute four different legal actions for damages arising out of a fatal accident: Dependants can claim for a loss of financial support The executor, acting on behalf of the deceased’s estate, can claim damages for pain and suffering caused to the deceased if proceedings had already been instituted by him. Funeral expenses can be claimed. Medical and hospital expenses prior to death can be claimed. Other civil wrongs: Invasion of dignity – (as opposed to reputation, which is defamation) are generally calculated on the same basis as for defamation. Adultery – damages are based on the invasion of the plaintiff’s dignity and marriage, aggravating and mitigating factors are taken into account. In September 2014 the Supreme Court of Appeal abolished this law calling it ‘archaic’ and that it recalled an era when a man had ‘proprietory interests’ in his wife - the court stated that ‘if partners have lost their moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that’. Wrongful arrest and imprisonment. The same rule applies in cases involving malicious prosecution, wrongful arrest and imprisonment. Unlawful interference with business or trade – damages should restore the plaintiff to his financial condition prior to the delict. Breach of copyright – in terms of the Copyright Act, special rules govern damages following an action for breach of copyright. Infringement of a patent right – the profit made by the defendant may be claimed. (see the Patents Act) Top of Page 6. My lawyer won my case, including costs. He has now presented me with a bill. How does this work? There are 2 types of costs: Party-and-partycosts which are costs incurred in the litigation. Usually only part-and-party costs, for which a scale of fees are laid down in an official tariff, are awarded to a successful litigant: in other words the successful litigant is awarded costs such as the attorney’s charges for taking instructions to sue, drawing up the summons, the reply to the defendants plea, requests for further particulars, preparing for trial and attendance in court. The latest (fee)amendments come into effect on 1 November 2017. Attorney-and-client costs which are costs over party-and-party costs that an attorney is entitled to claim from his/her client for professional services rendered and which are payable no matter the outcome of the case. This includes costs incurred before the start of proceedings. Thus, the fees for counsel’s opinion before the trial do not form part of party-and-party costs. Remember however that the official scale of fees applies only if there has been no agreement between you and your lawyer that higher fees shall be charged. Top of Page 7. What is some of the day-to-day legal business that a lawyer undertakes? An attorney has direct contact with a client and undertakes day-to-day business legal business, such as: The purchase and sale of property The registration of mortgage bonds The drawing of wills and contracts The registration of companies The winding up of estates Applications for licences and permits Preparing and conducting cases in court Here is the list of National High Courts and Masters of the High Court, and here the list of Magistrate Courts Top of Page 8. How does a person qualify to practise as an attorney in South Africa? The admission requirements for attorneys in South Africa are prescribed by the Attorneys Act 53 of 1979 and the rules promulgated in terms of the Act. The most relevant requirements are the following: Personal fitness-a person must be regarded as a fit and proper person by the Law Society and the High Court before he/she can be admitted as an attorney. Academic Qualifications-the only academic qualification presently recognized for the purpose of admission of attorney is a LLB degree (the course duration of which is not less than 4 years) obtained at any university in the Republic. From 2015, students who wish to study law at Wits University, will have to complete either a three-year BA Law degree or BCom Law before enrolling for a two-year postgraduate LLB programme - other universities may follow. Here is a list of the university law faculties. Attorney’s Admission Examination-must be successfully completed before admission. Service under Articles of Clerkship or Service Contract Appropiate legal experience-provision has been made that a person can apply for exemption from service under a contract if he has completed a five-year period in an area of ‘appropiate experience’ Compulsory practical legal training-a person must attend a practical legal training course, which is recognized by a Law Society in South Africa. Mandatory practise management-a course in practise management has become compulsory for all attorneys who are to be issued their first Fidelity Fund Certificate, subsequent to 14 August 2009. Of course, one is never ‘too old’ to study or practise law-for inspiration read more about Cornelia Leonard, from Leonard Attorneys in Johannesburg, who opened her law practise in 2014 at the age of 66, and Nelson Mandela who obtained his LLB degree in 1989 at the age of 69. For further information contact the Law Society of South Africa. Top of Page 9. What are the functions of a notary and a conveyancer? A Notary is an attorney, who, having passed the requisite examinations, has been admitted by the High Court as a notary. Only a notary has the right to draw, certify and attest a notarial deed, such as an antenuptial contract, contracts creating servitudes, a long lease and a lease of mineral rights. A notary also authenticates certain formal documents. Every deed passed before a notary has a special seal attached to it, and a copy has to be kept by the notary in his protocol (a special file) that must be indexed, bound from time to time, and kept in a safe place. A Conveyancer is an attorney, who, having passed the requisite examinations on the law, practise and procedure of conveyancing conducted in terms of the Attorneys Act 1979, and has been admitted by the High Court as a conveyancer of fixed property. Conveyancers execute deeds of transfer and mortgage bonds (amongst other) and files them in a deeds registry (see the Deeds Registry Act), where it becomes a matter of public record. Conveyancing is of a highly specialized nature and according to the Law Society there are 5001 conveyancers in South Africa. Top of Page 10. How are the main bodies of law categorized in South Africa? International Law, sometimes called public international law comprises that body of law governing the relations between states in time of peace, war and neutrality. Conflict of Laws sometimes called private international law deals with the problem of selecting which system of law is to be applied in a dispute which involves some foreign element and in which two or more systems may be involved. National Law sometimes called ‘the law of the land’ and refers to the body of legal rules which are enforced within its boundaries. Procedural Law consists of the body of rules governing the enforcement of legal rights granted under the substantive law, and comprises the law of civil and criminal procedure, and the law of evidence, which prescribes how facts in issue, in either a criminal or a civil case, are to be proved. Substantive Law comprises those branches of law which deal with the creation, operation and extinction of rights and duties, and can be divided between public and private law. 1. Public Law governs the relation between the state and its subjects, and comprises administrative law, constitutional law, criminal law, labour law and the law of taxation. 2. Private Law concerns the subjects of the state and their relationship with each other. It includes the law of persons and the family, mercantile law (comprising company law, the law of negotiable instruments and the law of insolvency), the law of property, the law of succession and the law of obligations (which may be subdivided into the law of contracts, the law of delict and the law of unjust enrichment.) The above classification does not include all the branches of the law, in addition to there being considerable overlapping of different branches of law. Top of Page 11. What is the structure of the courts in South Africa? As at April 2015 there were 239 judges and 1568 magistrates permanently employed in the country. The ordinary courts are: Constitutional Court: the 17th Constitutional amendment entrenches the Constitutional Court as the highest court of the land. The Act also rewrites Section 167 of the Constitution to state that the Constitutional Court has jurisdiction in all constitutional matters 'and any other matter in which it may grant leave to appeal. Supreme Court of Appeal High Courts Regional and Magistrate’s Courts Small Claims Courts Community courts and courts of Chiefs and Headmen Courts that deal with special type of cases: Labour Appeals Court: deals with appeals from the Labour Court. The 17th Constitutional Amendment makes it no longer possible to appeal from the Labour Appeals Court to the Supreme Court of Appeal instead parties must turn to the Constitutional Court which has the discretion whether it will grant the leave to appeal. Labour Court: deals with disputes under the Labour Relations Act Land Claims Court: deals with land claims and land tenure issues Family Courts: deal with family matters, like divorce (fall under Regional Court) Maintenance Courts Juvenile Courts Children’s Courts Tax Courts Water Tribunal Equality Courts Chief and headmen’s Courts The different courts in South Africa and the appeal or review procedures:
Top of Page 12. What is the function of the Law Society? The Law Society of South Africa is the controlling body for the legal profession in South Africa. It brings together its six constituent members-the Black Lawyers Association, the Cape Law Society, the Kwazulu-Natal Law Society, the Law Society of the Northern Provinces, the Free State Law Society, and the National Association of Democratic Lawyers. In terms of the Attorneys Act, 1979, attorneys in South Africa are registered on the practising roll at the statutory, provincial law society where their practices are situated. For attorneys in: Gauteng, North-West Province, Mpumalanga and Limpopo Law Society of the Northern Provinces Tel (012) 338 5800 www.northernlaw.co.za Free State Law Society of the Free State Tel (051) 447 3237 www.fs-law.co.za Kwazulu-Natal Kwazulu-Natal Law Society Tel (033) 3451394 www.lawsoc.co.za Western, Eastern and Northern Cape Cape Law Society Tel (021) 443 7600 www.capelawsoc.law.za In terms of the Attorneys Act, 1979, Attorneys fall under the regulatory and disciplinary jurisdiction of the provincial law society where they practise. The law societies act in the public interest and are prepared to investigate complaints which are submitted to them in good faith and which fall within their jurisdiction. The Law Society of South Africa (LSSA) has provided valuable information brochures for members of the public in 5 official language regarding the following legal subjects: Small Claims Court, Legal Apsects of Marriage, Applying for Temporary and Permanent Residence Visa, Deceased Estates, Claiming from the Road Accident Fund, Buying or Selling a House and The Consumer Protection Act – you can select and read more here. Please note: these brochures should not be construed as legal advice and for that you will need to consult with an attorney. Top of Page 13. Does money held in an Attorneys Trust Account pay interest? When you entrust money to an attorney, whether it’s a deposit for legal fees or the deposit or full purchase price of a property you’re buying – your attorney must hold your money in a trust account. Interest earned on money gets added to the Attorney’s Fidelity Fund. The Fund is a statutory body established and regulated by the Attorney's Actt and provides professional indemnity insurance to lawyers if they face claims for theft. Typical losses covered by the fund include the theft of money pending registration of immovable property, the theft of money from deceased or insolvent estates, and the theft of settlements in personal injury claims. In 2015 to 2016 some 854 claims totalling R271 million were lodged with the Attorney Fidelity Fund but less than half this amount was paid out (R120 million). In this way the fund provides a basic level of professional indemnity cover via a non-profit entity, the Attorneys Insurance Indemnity Fund. The protection provided by the Fund encourages the public to use services provided by legal practitioners with confidence. In terms of the Attorney's Act, unless you give an attorney a specific instruction to invest your money for your benefit in terms of section 78(2A) of the Act, you wont necessarily be paid the interest earned on your money, and there is no legal obligation on your attorney to disclose this to you. Be sure that you, the client, are informed of all the options available to you in law, to enable you to make an informed decision. Whilst the Attorneys Insurance Indemnity Fund (AIIF) provides a basic level of professional indemnity, once this limited cover had been depleted, the directors/partners in a law firm become jointly and severally liable for any additional liability in excess of the cover provided by the AIIF. This could have catastrophic consequences for a law firm and attorneys can read more about the need for top-up cover here. Enquire whether your law firm has adequate PI Insurance.
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