South African Law. François Smuts
success or failure of your case, and for more or less the same reason you would not recruit Roger Federer as opening bowler for the Proteas – he may have a killer serve, but you do not play cricket on a tennis court. Besides this, the law of procedure places great importance on the legal jargon that makes the legal process so inaccessible to the layperson. If you understand the law of procedure, you will understand a fair amount of the legal jargon.
I will not make it too dry but I would like you to understand some basic concepts that in my experience will be helpful.
This section covers only civil procedure – those rules applicable to civil litigation. Criminal procedure (the rules applicable to criminal law) is discussed later under criminal law. Concerning the law of civil procedure, we will start with and stick to the most basic parts of the law, namely those relating to actions and applications.
1.5.1 Actions and applications
Actions and applications form the basis of the law of civil procedure.
1.5.1.1 Actions
An action begins with the issuing and serving of a summons. Here is an example: imagine that your Italian prince arrives, but he is ten years too late – you are already married to Ben Boring. You therefore want a divorce. The document with which you institute court proceedings is the summons. Part of the summons is the particulars of claim, setting out what you want: a divorce, half of the house and R15 000 a month in maintenance, and why you want it – because your marriage has broken down. A summons with such particulars of claim will not get you a divorce order if it is simply left in a drawer. It must become “official” and Ben must receive notification of it. It becomes official the day that it is issued at the courts, which means that it is recorded in a register, it is given a number (the so-called case number) and it is date-stamped. Serving takes place when the sheriff – the court’s messenger and bouncer – takes the summons to Ben and gets him to sign to acknowledge that he received it. Ben has then received notice of your action against him and the game can begin.
Ben will probably know that he cannot successfully contest the divorce itself after his first visit to his attorney. However, he may well have different ideas to you regarding the half share of the house and the R15 000 per month maintenance. If so, he must oppose your action. This he would do by filing a notice.
A while later he will plead or enter a plea, which, as stated above, is a formal answer to the allegations that you have made in your particulars of claim and this he does by means of a document called a plea. The plea, like all documents that are exchanged between the parties after summons has been served, is served by physically delivering it to the office of the opponent’s attorney, where someone signs to acknowledge receipt of it. It does not matter who delivers it; this is usually done by a messenger. After delivery, a copy of any documents that have been delivered (bearing the acknowledgement of delivery in them) is handed in at court so that a copy can be placed on the court file.
In an action, you (the person who initiated the action) are called the plaintiff and Ben, the person who defends the action, is called the defendant. How does the matter then proceed between the two of you? We will now set it out in more or less the order in which things normally happen in a civil case, with a warning that matters do not always go according to plan and that at every step outlined here, a number of exceptions to the usual procedure are possible. One must also bear in mind that there are a number of differences in procedure between the magistrates’ court and the higher courts, but these are not important for our purposes. What follows applies to both magistrates’ courts and higher courts.
1.5.1.1.1 The procedural course of an action
Counterclaim
If the defendant feels that he also has a claim against the plaintiff, he can institute a counterclaim. This is what usually happens in a divorce. For example, Ben may believe that he ought to get the entire house as well as your Maserati, and that it is you who should pay maintenance of R10 000 per month to him. He serves and files his counterclaim at the same time as he serves and files his plea. The plaintiff must in turn plead to the particulars of claim in respect of the counterclaim.
Replication
Sometimes a plaintiff wants or needs to answer a plea and he does this by serving a replication.
Exception
The opposing party can object to the content of a pleading, usually by means of serving an exception, which is a document setting out what is wrong with a pleading. If, for instance, the defendant delivers a pleading that does not contain a legally valid defence or is unnecessarily vague and confusing, the plaintiff can note an exception against the plea. The exception is then argued in court and the judge will decide if the exception has merit or not. If the exception was warranted, it is upheld; if it was not, it is dismissed. If it is dismissed, it means that either the entire pleading or at least the objectionable part of it is scrapped.
Amendment of pleadings
Normally the pleading concerned is amended after a successful exception, which is legalese for changing. Pleadings can also be amended for other reasons, for example if new evidence becomes available. In order to do this, notices are delivered by each party to the other.
Summary judgement
When a case is defended and the plaintiff is of the opinion that the defendant does not have a valid defence, he can apply for summary judgement under certain circumstances. This is a procedure that brings to book defendants who try to postpone paying their debts when they do not actually have a defence. It comes down to the defendant having to set out his defence in a sworn affidavit (the opposing affidavit). The court then decides whether there really is a valid defence against the plaintiff’s action. If the court decides that there is no defence to a plaintiff’s action, summary judgement is granted and that is the end of the matter. If it appears from the defendant’s affidavit that there is indeed a defence, the case proceeds in the usual way.
Provisional sentence
A provisional sentence is a special procedure used in cases where the plaintiff is in possession of a document that indicates that the defendant owes the plaintiff a specific sum of money. A good example of such a document is a cheque. A plaintiff issues a special form of summons to which a copy of the document concerned is attached. Just as with summary judgement, a shortened process follows and unless the defendant has, broadly speaking, a special (usually very technical) reason why he does not owe the money, provisional sentence is granted and the defendant must pay into court the amount for which he is being sued if he wants to continue with the case.
Discovery
Discovery (we also speak of the discovery of documents or things) is the delivery of a notice of documents, photographs, plans, diagrams and video material that the party concerned intends using at the trial. If the opposing party feels that there are further documents that may be relevant to the case but which the party concerned has not discovered, he can deliver a notice requesting delivery of those specific documents that are sought. Naturally, copies of everything listed in the notice must be supplied to the opposing party.
Inspections and enquiries
Inspections and enquires can be mutually requested. If, for example, you are injured in a car accident and you claim damages for your injuries, you will without exception be expected to be medically examined. Based on this examination, an expert report (a medico-legal report) is drawn up that contains a summary of the expert’s opinion and the reasons for such opinion. Expert opinions and reports are not necessarily of a medical nature: they can be about tools, financial statements, computer programs, the courses of rivers, types of soil … whatever may be an issue in a court case.
Further particulars
Further particulars (sometimes called trial particulars) are mutually requested about matters that are not clear to the other party from the pleadings but that are needed to prepare for the trial. Say, for example, I slip and fall in a supermarket. The supermarket alleges that there was a notice clearly stating that the floor was wet. I am entitled to ask at this stage what this notice looked like, where it was displayed, and so on.
Pre-trial