South African Law. François Smuts
trusts and the estates of mental patients. There is a specific official called the Master.
medico-legal examination and reports – medical examinations that a plaintiff in an action undergoes so that the extent, history and prognosis of his condition can be determined, and the reports that medical experts draw up with reference to such examinations. See also expert evidence.
merits – the grounds on which a party requests a court order. If he asks for a sum of money, then the merits exclude proof of the amount.
motion – the same as an application.
negligence – one of the components of a delict that states that an act or omission deviates from what a reasonable person would do (or not do) in a specific situation.
notice – a document used in litigation informing someone of something that has happened or is going to happen.
notice of intention to defend – the notice that notifies the plaintiff in an action that the action is going to be opposed (or defended).
notice of motion – a notice that is the first document in an application, in which the applicant sets out what he is asking of the court. If, for example, my neighbour habitually makes a lot of noise late at night, I would ask in my notice of motion for the court to order him to stop making a lot of noise.
notice of opposition – the notice that notifies the applicant in an application that the application is going to be opposed (or defended).
on a balance of probabilities – the burden of proof in a civil case that places the burden on the party that bears it to prove that his version is more probable than that of his opponent. Compare this with beyond reasonable doubt, the burden of proof in criminal cases.
onus – the burden of proof placed on a party to prove his case. This means that if the court cannot decide which party’s version of events to accept, it will decide against the party that bears the onus. Also called the burden of proof.
opposing side or opposing party – opponent in an action or application.
oral evidence – evidence that is verbally given in court. Also sometimes colloquially referred to as “evidence under oath”, though, strictly speaking, the latter includes evidence given in a sworn affidavit. The witness stands in the witness box, the oath is taken by the witness (“Do you swear that the evidence that you will give is the truth, the whole truth and nothing but the truth, so help me God?”) and everything that the witness says about the case after that is evidence under oath.
papers or court papers – the documents drafted during a court case. These include process documents in actions and all documents in applications.
particulars of claim – the part of the summons in which the plaintiff sets out what he is seeking from the court and his reasons for the request. If you are in possession of my car, the particulars of claim would state who I am, who you are, that I am the owner of the car and that you are in possession of it. I would then ask the court to order you to return the car to me and to order you to pay the costs of the court case.
party – the person or entity who is directly involved in litigation. This is often used together with opposing party or opposing side, meaning “the party on the other side”. If I institute divorce proceedings against my wife, we are the parties in the lawsuit and she is my opposing party or the opposing side. Our children are also involved in the litigation but they are not directly involved and are therefore not parties to it.
plaintiff – the person or entity who institutes an action.
plea – document in an action that sets out in detail why a defendant does not agree with a plaintiff’s case and thinks that it must fail.
pleadings – documents in an action that set out the issues in dispute.
pre-trial conference – a meeting between the parties in an action held prior to the trial in accordance with prescribed rules, to try to keep the trial as brief as possible and to reduce the issues in dispute between the parties.
prima facie – a commonly used Latin term, the precise meaning of which depends on the context in which it is used. However, the usual meaning is “from an initial impression” or “without considering the other side of the matter”.
private law – the part of the law that has to do with the rights of and legal relationships between private individuals.
pro Deo – a Latin term that, if translated literally, means “for God”. These days it usually means “with state funding” because it is used when the state pays for the legal representation of a pauper who is the accused in a criminal case.
probability – a judgement about evidence that indicates whether it conforms to general life experience. It is improbable to say that you have been attacked by a blue dog with two heads, while it is probable to say that your neighbour’s Rottweiler bit your hand. See also credibility.
process document – collective noun referring to any of the documents used in a court case. The process document includes but is not limited to the pleadings. It also includes notices.
prosecution – the conducting of a criminal case by the state.
provisional sentence – a process by means of which an action is initiated and conducted when the cause of action arises from a document or documents that clearly show the indebtedness of the defendant.
public law – that part of the law dealing with statutory or public bodies, such as Telkom, their relationships with each other and their relationship with citizens of the country.
quantum – the amount being claimed in a civil case. This is a separate issue from the merits of the case and is often argued and considered separately.
reasonable – in accordance with sound understanding, fairness and justice. It is often used as a measure of what society considers “right”.
reconvention – as opposed to convention. See convention.
re-examination – literally, the “second examination”. This is the last series of questions that can be asked of a witness in a court case by his own legal representative and follows examination in chief and cross-examination. It is restricted to questions that follow on the questions put to the witness in cross-examination.
registrar of the court – the clerk of the high court who deals with the administrative side of court cases.
replication – an answer by a plaintiff to a defendant’s plea.
reply – the opportunity given to a party to respond to his opponent, either by way of a sworn affidavit in an application, an answer to a written defence (see replication) or by way of argument if in court.
replying affidavit – the third set of sworn affidavits in an application. It is the applicant’s answer to the respondent’s answering affidavit.
respondent – the party against whom an application is brought.
review – the process that is followed when a person is of the opinion that a decision was taken that affects his rights and that there was something wrong with the process that was followed in reaching that decision. Compare this to appeal.
rule nisi – a court order that calls on your opponent to come forward at a later date to say why an order in your favour (called a final order) should not be given by the court.
sentence – in criminal cases, the punishment that the court imposes on the accused after he has been found guilty, for example a fine or a prison sentence.
service/to serve – the process whereby the sheriff delivers a document to a person and afterwards gives a report of how he did so to the person who gave the instruction. This is the way in which the legal system ensures that someone receives a document.
set of facts – the total of a collection of facts about which one can determine the legal position. Often the addition or removal of a single