What is the difference between an attorney and an advocate in South African legal terms?
The main difference: attorneys are the legal professionals who engage directly with clients and handle many legal tasks, and advocates are specialist courtroom lawyers primarily engaged by attorneys to represent clients in court proceedings and litigation.
When can advocates deal directly with clients?
Once they meet specific requirements. These advocates are called "trust account advocates" - must have a fidelity fund certificate, which include professional indemnity insurance, allowing them to hold and manage client funds.
What is the difference between civil and criminal law?
Civil law resolves disputes between individuals or entities. Criminal law - The State prosecutes the accused. The burden of proof is different in that in civil law the plaintiff must prove their case on a "balance of probabilities" - meaning it is more likely than not that their claim is true. In criminal law the State must prove the accused's guilt "beyond a reasonable doubt" - a much higher standard is given.
When is the term lawyer used?
In South Africa, the term "lawyer" is used informally and broadly to refer to anyone with legal training - typically someone holding an LLB degree. This includes attorneys, advocates, legal scholars, and even judges. However, only certain qualified professionals are formally permitted to represent clients in court.
Do I really need a lawyer, or can I handle this issue myself?
You can in certain labour issues, but you should consider a lawyer when there are complex legal issues, contractual terms, or significant financial consequences.
How much will this cost and how are fees structured?
Lawyers offer fixed-fee arrangements for defined legal tasks or litigation. Litigation retainers spread the projected cost over the months before a hearing; hearing days may be billed at a separate fixed daily rate. Contingency arrangements based on successful litigation. The success fee can't exceed twice the lawyer's normal fee, but also must not exceed 25% of the monetary award.
What are my rights in any litigation?
Constitutional rights rank the highest. Under Section 34 of the Constitution, everyone is entitled to have legal disputes decided in a fair, public hearing before an independent and impartial court or tribunal. Section 35 provides rights such as being informed of charges, presumption of innocence, representation by a lawyer, and access to legal aid if necessary to prevent substantial injustice.
How long will a legal process take?
There is a tremendous backlog in South Africa's justice system, and it significantly delays legal proceedings, especially in criminal and civil matters.
Can I get legal aid or free legal representation?
You're constitutionally entitled to legal representation at state expense if you cannot afford a lawyer and substantial injustice would result, particularly when there's a risk of imprisonment.
Children under 18 automatically qualify for legal aid in criminal cases and don't need to undergo a means test.
For adults, eligibility is assessed using a means test based on income and assets.
Current Thresholds (as of April 2024):
- Monthly income must be under approximately R8,200 - R8,700 after tax.
- Movable assets: ≤ R151,700 - 160,800.
- Immovable assets: ≤ R711,700 - 754,400.
Legal Aid SA may grant aid even if you exceed these thresholds - and especially if denial would result in substantial injustice, but approval depends on case complexity and resources. A court can also order Legal Aid to provide representation even if you don't meet the criteria.
What must I do if I am arrested?
Assert your constitutional rights under Section 35 of the Constitution and the Criminal Procedure Act. Key rights include being informed of the reason for arrest in a language you understand, the right to remain silent (do not answer questions beyond confirming identity, as statements can be used against you), and the right to contact a lawyer of your choice or request state-funded Legal Aid if unaffordable.
How soon must I be brought to court?
You must be brought to court within 48 hours (or the next court day if arrested near a weekend/public holiday).
How is bail determined?
Courts evaluate multiple criteria before deciding on bail, amount, and conditions:
- Seriousness of the offense - More severe crimes (e.g., violent felonies) weigh against bail.
- Flight risk - Evidence of intent to abscond, weak community ties, or prior failures to appear.
- Criminal history - Past convictions, especially similar offenses or bail violations.
- Public safety - Likelihood of reoffending, intimidating witnesses, or interfering with evidence.
- Personal circumstances - Employment, family ties, residence stability, and time already in custody.
- Ability to pay - Bail amount must be affordable; courts inquire into finances and may opt for non-monetary conditions like reporting or travel restrictions if unable to pay.
Do the police need a warrant? Can they search my person, car, or home without one?
In South African law, police typically require a search warrant under Section 21 of the Criminal Procedure Act to search your home or premises, issued by a magistrate on sworn evidence of reasonable grounds for believing evidence of a crime is present, specifying the officer, location, and items. However, warrantless searches are permitted in limited cases - with your informed consent, in urgent situations where delay would allow evidence destruction, during a lawful arrest (extending to your person and vehicle under Section 22), at authorized roadblocks, or if there's reasonable suspicion the person/vehicle holds evidence and obtaining a warrant isn't feasible. Home searches without a warrant are especially restricted to exigent circumstances; absent these, the search is unlawful.
Can I sue after a motor accident or slip & fall?
How much time do I have to start proceedings? Yes, in South African law, you can sue for damages after a motor vehicle accident or slip-and-fall incident if you prove negligence under the law of delict. For a motor accident, claim against the Road Accident Fund (RAF) for compensation covering medical costs, loss of income, general damages (pain and suffering), and support if applicable - provided you were not the sole negligent driver; issue a summons within 3 years (or 2 years for hit-and-runs), but notify RAF promptly with medical reports, accident details, and witness statements. Slip-and-fall claims target the property owner/occupier for failing their duty of care (e.g., unrepaired hazards), requiring proof of wrongful conduct, causation, and quantifiable losses like injuries or lost wages; the 3-year prescription period applies from when you knew of the harm and wrongdoer.
My landlord is threatening eviction or raising rent - what notice must they give, and what rights do I have?
Eviction Notice Requirements - Under the Rental Housing Act 50 of 1999 (RHA) and Prevention of Illegal Eviction Act 19 of 1998 (PIE), your landlord must first issue a written notice of breach (e.g., non-payment) giving you 20 business days to remedy it. If unresolved, they must provide a termination notice - one calendar month for fixed-term leases ending naturally, or one month for periodic/month-to-month leases, specifying the vacate date. Eviction itself requires a court order - no self-help like lockouts or utility cuts is allowed; the landlord applies to the Magistrate's Court after failed notice, serving you and the municipality 14 business days before the hearing.
Rent Increase Notice - Landlords must give one full calendar month's written notice of any rent hike, detailing the new amount and effective date, complying with the Consumer Protection Act's fairness requirements. Unilateral increases without notice or exceeding reasonable market rates can be challenged via the Rental Housing Tribunal (RHT), which resolves disputes free of charge.
Your Rights and Remedies - You can oppose eviction in court by proving just cause (e.g., valid dispute, hardship), and courts consider alternatives like payment plans. Unlawful threats or actions entitle you to RHT mediation, damages claims, or PIE interdicts. Report to RHT within 7 days for urgent relief, or seek Legal Aid; fixed-term leases can't be ended early without material breach.