Gathering Evidence in Aid of Foreign Litigation Guide |
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South Africa |
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| (Africa) Firm Bowmans Updated 25 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. In South Africa, the gathering of evidence for use in foreign litigation is permitted upon application to the High Court of South Africa in terms of the Foreign Courts Evidence Act 80 of 1962 (the "FCEA"), as well as in terms of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes. South Africa acceded to the Hague Evidence Convention in 1997. In terms of the FCEA, a party seeking to obtain evidence in aid of foreign litigation is required to apply to the High Court of South Africa for an order directing the collection of the evidence. In this application, the party seeking the evidence must demonstrate (i) that they are parties to litigation in a foreign court of competent jurisdiction; (ii) that the foreign court is desirous of obtaining stipulated evidence and (ii) that the witnesses and/or documents are within the jurisdiction of the High Court in South Africa to which the application is made. If granted, the High Court will appoint an individual (often a retired judge or magistrate) to “receive” the evidence stipulated, to certify the evidence and to dispatch it to the foreign court in question. The individual authorized to receive such evidence is granted the power to issue subpoenas to secure such evidence. In our experience, the process of obtaining evidence in terms of the Hague Evidence Convention can be pursued in conjunction with, or as an alternative to, the process in terms of the FCEA. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes. As discussed above, a request in terms of the FCEA requires an application to be granted by a judge. However, the FCEA also provides that if the evidence is to be used for civil proceedings before a magistrate’s court in Botswana, Lesotho, Malawi, Namibia, eSwatini or Zimbabwe, the magistrate in the jurisdiction seeking the evidence may make the application directly to a magistrate in South Africa. Under the Hague Evidence Convention, the designated central authority for approval in South Africa is the Director-General of the Department of Justice (the "DG"). Once a request is approved, the DG will direct a magistrate or judge to convene a hearing at which the evidence will be taken, the magistrate or judge having the necessary powers to subpoena witnesses and documents. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | An order granted in terms of the FCEA may require the witness to (i) give evidence, under oath or affirmation, as if he or she was a witness to court proceedings; and/or (ii) produce any book, document or object required. |
| Who bears the burden of showing whether any privileges apply? | In terms of the FCEA, the Magistrates Court Rules Relating to Privilege are applicable. In terms of these rules, the witness would need to claim privilege and would accordingly bear the burden of demonstrating that privilege applies. Under the Hague Evidence Convention, the rules of privilege are regulated by the law of the state in which the evidence is situated which, in the case of South Africa, will be as above. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No. The judge, magistrate or individual taking the evidence will usually receive the evidence stipulated in the FCEA court order or Hague Evidence Convention request (as the case may be) and will leave questions of admissibility to be determined by the foreign court requesting the evidence. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | The FCEA does not specifically provide for “depositions” but does provide that witnesses can be obliged to “give evidence, under oath or affirmation, as if he or she was a witness to court proceedings”. If the foreign court proceedings in question allow for depositions, it follows that proceedings under the FCEA may take place in deposition format. The individual appointed to receive the evidence under the FCEA has discretion regarding the manner in which the evidence may be taken. In our experience, such individuals are usually agreeable to the use of videoconference facilities. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | The FCEA imposes two limitations on evidence given by residents: (i) the evidence must only be given for the purposes of foreign civil proceedings; and (ii) the evidence cannot be given in contravention of the Protection of Businesses Act 99 of 1978 (the "PBA"). The PBA requires approval from the Minister of Trade and Industry before any person may provide any information relating to “any act or transaction […] connected with the mining, production, importation, exportation, refinement, possession, use, sale, or ownership to any matter or material, of whatever nature.” This provision of the PBA is interpreted restrictively and South African courts will only be precluded from granting an order in terms of the FCEA if the foreign litigation arises from an act or transaction connected with the abovementioned processes involving a raw material. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | There is nothing under South African law prohibiting a citizen from giving evidence voluntarily for use in foreign proceedings. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Our answer would depend on the location of the seat of the foreign arbitration. Where the law of the seat is not South Africa, we would need to understand the law of the seat on this issue before providing a definitive response. Where the seat of the arbitration is in South Africa, the UNCITRAL Model Law on International Commercial Arbitration (the "Model Law"), as incorporated into the International Arbitration Act 15 of 2017, installs a consent-based system for gathering evidence for international arbitration proceedings. In terms of the Model Law:
However, Article 27 of the Model Law provides that the arbitral tribunal (or a party with the approval of the arbitral tribunal) may request from a court in the jurisdiction of the seat of the arbitration, assistance in taking evidence. It seems, then, that the parties could agree to follow the FCEA or Hague Evidence Convention process, but that they would need the leave of the arbitral tribunal to do so. With the requisite leave, the parties could request the registrar of the division of the High Court, or a clerk of the Magistrate’s Court, in whose jurisdiction the arbitration takes place, to exercise their powers to issue a subpoena to compel the attendance of a witness before the tribunal in order to give evidence or to produce documents. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes. In South Africa, the gathering of evidence for use in foreign litigation is permitted upon application to the High Court of South Africa in terms of the Foreign Courts Evidence Act 80 of 1962 (the "FCEA"), as well as in terms of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).
Yes. South Africa acceded to the Hague Evidence Convention in 1997.
In terms of the FCEA, a party seeking to obtain evidence in aid of foreign litigation is required to apply to the High Court of South Africa for an order directing the collection of the evidence. In this application, the party seeking the evidence must demonstrate (i) that they are parties to litigation in a foreign court of competent jurisdiction; (ii) that the foreign court is desirous of obtaining stipulated evidence and (ii) that the witnesses and/or documents are within the jurisdiction of the High Court in South Africa to which the application is made.
If granted, the High Court will appoint an individual (often a retired judge or magistrate) to “receive” the evidence stipulated, to certify the evidence and to dispatch it to the foreign court in question. The individual authorized to receive such evidence is granted the power to issue subpoenas to secure such evidence.
In our experience, the process of obtaining evidence in terms of the Hague Evidence Convention can be pursued in conjunction with, or as an alternative to, the process in terms of the FCEA.
Yes. As discussed above, a request in terms of the FCEA requires an application to be granted by a judge. However, the FCEA also provides that if the evidence is to be used for civil proceedings before a magistrate’s court in Botswana, Lesotho, Malawi, Namibia, eSwatini or Zimbabwe, the magistrate in the jurisdiction seeking the evidence may make the application directly to a magistrate in South Africa.
Under the Hague Evidence Convention, the designated central authority for approval in South Africa is the Director-General of the Department of Justice (the "DG"). Once a request is approved, the DG will direct a magistrate or judge to convene a hearing at which the evidence will be taken, the magistrate or judge having the necessary powers to subpoena witnesses and documents.
An order granted in terms of the FCEA may require the witness to (i) give evidence, under oath or affirmation, as if he or she was a witness to court proceedings; and/or (ii) produce any book, document or object required.
In terms of the FCEA, the Magistrates Court Rules Relating to Privilege are applicable. In terms of these rules, the witness would need to claim privilege and would accordingly bear the burden of demonstrating that privilege applies.
Under the Hague Evidence Convention, the rules of privilege are regulated by the law of the state in which the evidence is situated which, in the case of South Africa, will be as above.
No. The judge, magistrate or individual taking the evidence will usually receive the evidence stipulated in the FCEA court order or Hague Evidence Convention request (as the case may be) and will leave questions of admissibility to be determined by the foreign court requesting the evidence.
The FCEA does not specifically provide for “depositions” but does provide that witnesses can be obliged to “give evidence, under oath or affirmation, as if he or she was a witness to court proceedings”. If the foreign court proceedings in question allow for depositions, it follows that proceedings under the FCEA may take place in deposition format. The individual appointed to receive the evidence under the FCEA has discretion regarding the manner in which the evidence may be taken. In our experience, such individuals are usually agreeable to the use of videoconference facilities.
The FCEA imposes two limitations on evidence given by residents: (i) the evidence must only be given for the purposes of foreign civil proceedings; and (ii) the evidence cannot be given in contravention of the Protection of Businesses Act 99 of 1978 (the "PBA"). The PBA requires approval from the Minister of Trade and Industry before any person may provide any information relating to “any act or transaction […] connected with the mining, production, importation, exportation, refinement, possession, use, sale, or ownership to any matter or material, of whatever nature.” This provision of the PBA is interpreted restrictively and South African courts will only be precluded from granting an order in terms of the FCEA if the foreign litigation arises from an act or transaction connected with the abovementioned processes involving a raw material.
There is nothing under South African law prohibiting a citizen from giving evidence voluntarily for use in foreign proceedings.
Our answer would depend on the location of the seat of the foreign arbitration. Where the law of the seat is not South Africa, we would need to understand the law of the seat on this issue before providing a definitive response.
Where the seat of the arbitration is in South Africa, the UNCITRAL Model Law on International Commercial Arbitration (the "Model Law"), as incorporated into the International Arbitration Act 15 of 2017, installs a consent-based system for gathering evidence for international arbitration proceedings.
In terms of the Model Law:
- the parties may agree on the procedure to be followed for the gathering of evidence;
- parties may submit statements, documents, or other evidence; and
- parties may decide whether to hold oral hearings for evidence.
However, Article 27 of the Model Law provides that the arbitral tribunal (or a party with the approval of the arbitral tribunal) may request from a court in the jurisdiction of the seat of the arbitration, assistance in taking evidence. It seems, then, that the parties could agree to follow the FCEA or Hague Evidence Convention process, but that they would need the leave of the arbitral tribunal to do so.
With the requisite leave, the parties could request the registrar of the division of the High Court, or a clerk of the Magistrate’s Court, in whose jurisdiction the arbitration takes place, to exercise their powers to issue a subpoena to compel the attendance of a witness before the tribunal in order to give evidence or to produce documents.