Professional Documents
Culture Documents
You think
outcome.
We think
process.
Overview
Contents
Attorneys and Advocates
02
02
Jurisdiction
03
03
04
Trial Preparation
10
Execution of Judgments
17
Execution
18
Garnishee Orders
19
20
21
Recovery Of Costs
22
01
Jurisdiction
Action or Motion
Proceedings
Once a decision has been made to embark on litigation
in the High Court it is necessary to determine
whether to proceed by way of trial (action) or motion
(application) proceedings.
In action proceedings, the person bringing the action
is called the plaintiff, and the person defending the
action is called the defendant.
In application proceedings, the person bringing the
application is called the applicant, and the person
defending the application is called the respondent.
In determining whether to proceed by way of action
or application, the question to be asked is whether a
material dispute of fact is anticipated. If a dispute of
fact is anticipated then generally it is best to proceed
by way of action where witnesses may be called to give
oral evidence at a trial. If no such dispute of fact is
anticipated then application proceedings are probably
appropriate. In an application, the matter will be
determined with reference only to the papers and, as a
general rule, no oral evidence is permitted.
The disadvantage with motion proceedings is that the
evidence is set out in affidavits and cannot be tested
by cross-examination. Consequently, it is difficult for
a court to decide between conflicting versions. The
advantage of motion proceedings is that they are
generally speedier and less expensive than actions.
If the court is faced with an application in which it is
evident that there is a material dispute of facts between
the parties then the court will refer the matter to trial.
The different procedures are set out more fully below.
02
03
04
Default Judgment
A plaintiff may apply for default judgment where a
defendant has failed to serve a notice of intention
to defend within the prescribed time or where the
defendant has failed to deliver its plea after receiving a
notice of bar from the plaintiff. Where the prescribed
time lapses, the plaintiff is entitled, without further
notice to the defendant, to apply for final judgment
against the defendant.
Where default judgment is granted, the plaintiff is able
to demand compliance with the judgment.
Where the defendant was not aware of the service
of the summons, it is possible for the defendant, on
learning of the judgment against him, to apply for a
rescission of judgment. This application is supported
by an affidavit which must provide a satisfactory
explanation for the defendants failure to give notice
of intention to defend and explaining the nature of the
defence that will be raised.
Summary Judgment
Summary judgment can be sought in certain
circumstances when an action is defended. It is a remedy
which is pursued by a plaintiff seeking speedy judgment
at an early stage without the delay and expense of a trial.
Exceptions
Before the defendant delivers his plea (statement of
defence) he may raise defences that do not go into the
merits of the case, but rather to technical legal issues.
This may be done by special plea or exception.
An exception is an objection to a material defect in the
opposing partys pleadings. Where a defendant wishes to
take exception to a declaration or particulars of claim,
then he must do so within 20 days after the service of
a declaration or 20 days from the date on which the
defendant files a notice of intention to defend. Where
the plaintiff wishes to take exception to the defendants
plea, then it must do so within 15 days after the service
of the defendants plea.
05
Special Plea
A special plea is a separate, special defence which
either destroys the cause of action or postpones its
operation. A few examples of defences which may be
raised as special pleas are as follows: that a party with
an interest in the matter has not been cited as a plaintiff
or defendant, that the matter has been bought in the
incorrect court, that the plaintiff is not competent to
bring the matter to court, that the time period within
which to bring the action has prescribed, that the
same matter is already before a competent court, or,
where there is a contractual dispute, that there is an
arbitration clause in the contract and the matter must
be referred to arbitration and decided by an arbitrator.
Plea
A plea (statement of defence) is the defendants response
to the plaintiffs summons and must be delivered within
20 days after the defendant has delivered its notice of
intention to defend.
Failure to file a plea in the prescribed time period entitles
the plaintiff to deliver a notice of bar calling on the
defendant to deliver the plea within 5 days. Should the
defendant fail to do so then the defendant is barred
from delivering his plea and the plaintiff may then apply
for default judgment as the defendant has failed to
defend the claim. In practice however, before barring
the defendant, the plaintiffs attorneys will as a courtesy
send a letter to the opposing attorneys demanding
that the outstanding plea be delivered within a certain
period of days.
The plea must set out the defence upon which the
defendant relies and must contain a paragraph-byparagraph reply to each of the allegations made by the
plaintiff in its particulars of claim. The defendant will
06
The Replication
A replication is the plaintiffs response to the
defendants plea and is necessary only when the plaintiff
wishes to place new facts before the court or clarify
issues raised in the counterclaim.
Interlocutory Procedures
Interlocutory procedures are concerned with resolving
side-line issues prior to the trial taking place. They
are always brought by application and are dealt with
separately from the main trial.
Trial Preparation
What happens after pleadings are closed?
Once all the pleadings have been filed, pleadings are
then deemed to be closed. Between this stage and the
trial a number of important procedures take place. The
most important of these procedures is discovery.
Discovery
Discovery is one of the most important steps in pretrial preparation and is based on the principle that a
party is entitled to be notified prior to the hearing of
the matter of all the documentary evidence, including
tape recordings and e-mails, which the opposing party
possesses which are relevant to the matter.
Discovery is the procedure in terms of which the parties
disclose to each other all relevant documents and
tape recordings that they or their agents have in their
possession or under their control. Discovery is made
by way of affidavit to which a list is annexed listing all
the documents in the discovering partys possession.
Generally, a party will not be allowed to use any
documents that he has failed to disclose in response to a
request for discovery.
There are however, certain exceptions to need to
disclose relevant documents. These include witness
statements taken for the purposes of the trial,
communications between attorney and client,
communications between attorney and advocate and
pleadings, notices and affidavits in the action.
There are certain other documents which are
considered to be privileged, and which likewise need
Pre-trial Conference
Within a perscribed period before the trial date the
attorneys and counsel representing the parties must
attend a pre-trial conference. The primary purpose of
this conference is to facilitate a discussion between the
parties to find ways of expediting the process by limiting
the issues between the parties for the purpose of trial.
It also provides the parties with an opportunity to settle
the matter before going to trial. A formal minute of the
pre-trial conference is prepared and is required to be
handed to the presiding judge prior to the trial.
07
Settlement
A dispute between parties may be settled at any
time prior to judgment. In practice, one party (often
the defendant) will approach the other party with a
settlement proposal setting out the terms on which that
party is prepared to settle the matter. The other party
can then accept the proposal, reject the proposal or
make a counter-proposal. If the claim is settled then the
parties will generally record the terms of the settlement
in a written settlement agreement.
08
Appeals
Review
A decision of a court may be taken on review where
the procedural correctness or fairness is questioned.
It is the process in terms of which the proceedings of
a lower court are bought before a higher court as a
result of certain irregularities. As it is unlikely that the
irregularity will be apparent from the record, in review
proceedings external evidence will be required to prove
the irregularity.
09
The Trial
Expert Witness
Execution of Judgments
Execution
The focus of any action is the trial itself. The trial is the
hearing by the court of evidence relevant to the dispute.
A single judge will be allocated to hear the matter.
Generally, the party making the claim bears the onus
of proving its claim. As such, the plaintiff usually starts
with its evidence first. Any claim must be proved on a
balance of probabilities.
Subpoenas
Generally witnesses will attend trial to give evidence
voluntarily. However, there may be times when a witness
will be unwilling to co-operate and appear in court. In
this instance, a subpoena may be issued by the registrar
of the court, at the request of a party, and served on
the witness by the sheriff. A subpoena is a document
which compels the witness to appear at court. It is a
criminal offence to disobey a subpoena.
The subpoena informs the witness when and where to
appear and may also require the witness to bring to
court certain documents relevant to the matter.
10
11
Garnishee Orders
A garnishee order is another means by which the
judgment creditor may enforce a judgment. A garnishee
order allows a judgment creditor to recover a judgment
debt by attaching a money debt owed to the judgment
debtor by a third party (the garnishee).
Enforcement of Foreign
Judgments
As a general rule, the judgment granted by a court in a
foreign country will have no direct operation outside
that country. However, there are circumstances under
which a foreign judgment may be recognised by a court
in South Africa and where a judgment given by a South
African court may be enforced in another jurisdiction.
These circumstances will exist on the basis of either a
treaty between the countries concerned, a piece of
legislation, or on the basis of the common law of the
state in which enforcement of the judgment is sought.
In determining whether a South African judgment can be
enforced in a foreign country, the laws of that country
will need to be examined. Generally a judgment creditor
will have to apply to the relevant court in the country to
apply for an order recognising the judgment. A foreign
country will be approached generally on the basis that
some sort of comity exists between the two countries.
12
13
14
Recovery Of Costs
At the end of the trial or application, the court will
hand down judgment and will make an order as to who
must pay the costs of the trial or application. This is at
the courts discretion. Costs will generally be awarded
in favour of the successful party. Although the purpose
of such an order is to indemnify the successful party for
the expenses it has been made to pay in order to initiate
or defend the litigation, in practice only a portion of
the costs are recoverable.
There are two basic costs orders which can be awarded
by a court:
Party and party costs, which are the necessary and
proper costs which have been incurred by the successful
party. This is the most common award given; and
Attorney and client costs, which allows for the recovery
of more costs than party and party costs and is usually
a punitive award.
15
Judgment granted
Defended Action
Proceedings
Summons
End of case
summary of judgment
(15 Days)
Warrant OF
EXECUTION
LEAve to
defend
APPLICATION
to sca/CC
further pleadings
(10 days)
Trial
APPLICATION
REFUSED
APPEAL
DISMISSED
APPEAL
UPHELD
End of case
Warrant OF
EXECUTION
End of case
16
APPLICATION FOR
LEAVE TO APPEAL (15 days)
WARRANT OF
EXECUTION
Claim dismissed
APPLICATION FOR
LEAVE TO APPEAL (15 days)
End of case
End of case
APPLICATION
to sca/CC
APPLICATION
REFUSED
APPEAL
DISMISSED
APPEAL
UPHELD
End of case
End of case
Warrant OF
EXECUTION
17
Judgment granted
APPLICATION FOR
LEAVE TO APPEAL (15 days)
WARRANT OF
EXECUTION
APPLICATION
to sca/CC
NOTICE OF INTENTION TO
OPPOSE (5 days)
APPLICATION
REFUSED
APPEAL
UPHELD
APPEAL
DISMISSED
ANSWERING AFFIDAVIT
(15 days)
End of case
End of case
Warrant OF
EXECUTION
End of case
REPLYING AFFIDAVIT
Claim dismissed
NOTICE OF SET DOWN
APPLICATION FOR
LEAVE TO APPEAL (15 days)
End of case
Hearing
LEAVE TO APPEAL REFUSED
End of case
18
APPLICATION
to sca/CC
APPLICATION
REFUSED
APPEAL
UPHELD
APPEAL
DISMISSED
End of case
Warrant OF
EXECUTION
End of case
19
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