South African Law. François Smuts
all high court trials and often before magistrates’ court trials, a pre-trial conference is held between the parties. At this stage, the parties agree on exactly what is in dispute and various practical issues that have a bearing on the trial are discussed. For example, the parties can decide to argue an issue that is crucial to one party’s case before the rest of the case is heard. If, for instance, you and I are arguing about whether you caused me to suffer damages and what such damages amount to, we can decide to argue first about whether or not you caused me to suffer damages. If the court decides that you did not cause me to suffer damages, then we do not need to bother discussing the amount of such damages.
What is set out above is a very broad outline of what takes place before a civil case. There may be many other hurdles in the process, but these are the most important steps that you have to go through before you get to a trial.
1.5.1.1.2 The trial of an action
This brings us to the trial itself. The trial usually proceeds as discussed in the following sections.
The opening argument
At this point, the plaintiff’s legal representative explains to the judge what the case is about. One must remember that the whole story of everything about which the parties are fighting is not usually told in the documents and reports that the judge has in the file. This is why witnesses are needed to give evidence. In the opening argument, a short summary of the plaintiff’s case is given to put the judge in the picture and sometimes, it must be said, to influence the judge just a little in favour of the plaintiff.
The plaintiff’s case
The plaintiff now calls all the witnesses needed to prove her case, one after the other. When their turn comes, the witnesses can offer further evidence, such as documents, videos, photographs, weapons, and so on. For each type of evidence there are different requirements. All testimony (evidence given by witnesses) proceeds as follows:
Examination in chief – during which the witness’s story is told in answer to the questions that the legal representative asks him. These questions are usually “open” questions that enable the witness to give his version of events in a free and (reasonably) natural way.
Cross-examination – this follows examination in chief and is central to the way in which Western legal systems look for the truth. This is done by the opposing side’s legal representative and the questions are usually more “closed”, by which I mean they are aimed at eliciting a particular answer, often a “yes” or a “no”. The truth and probability of the witness’s version are tested in cross-examination.
Re-examination – this concludes the evidence, and the witness’s “own” legal representative (meaning the legal representative of the party who called the witness) is given the opportunity to ask questions about what has been asked in cross-examination. The purpose of re-examination is to correct a wrong impression caused by cross-examination or to clarify something that is not clear.
Questions in clarification – questions that the judge or magistrate can ask at any stage of the evidence to get clarity about the evidence.
Application for absolution from the instance
After the plaintiff’s case is closed, the defendant can apply for the plaintiff’s case to be dismissed because there is simply not enough evidence against the defendant. This is called absolution from the instance. If such an application is successful, the plaintiff can try to get hold of more evidence, but in my experience this does not usually happen.
The defendant’s case
The defendant’s case is presented in exactly the same way as the plaintiff’s. After the evidence for the defendant has been given, the defendant closes his case.
Trials in public
As a rule, all trials are open to the public. When minors are charged with committing a crime, their trials are always held in camera, which means that only the court officials and the accused are allowed in court. In civil trials, minors always have legal representatives, but civil trials are seldom held in camera.
Special witnesses and evidence
These are witnesses and evidence that can be called and heard at any stage of a trial and do not fit logically in either the plaintiff’s or the defendant’s case – this evidence can be called by either of the parties:
Expert witnesses giving opinion evidence. Opinions as evidence are normally not admissible, as usually the court itself can form an opinion about what a witness has said. However, experts may give their opinion because they are better qualified than the judge to express an opinion in their area of expertise.
Direct and circumstantial evidence. The distinction between these two forms of evidence is important. Direct evidence is something like, “I saw the defendant drive through a red traffic light.” Circumstantial evidence is evidence that has been deduced, for example skid marks on a road, from which the speed of the car before the driver braked can be determined.
Argument
Next the parties argue about the evidence in order to try to convince the court to find in favour of either the plaintiff or the defendant. The sequence of argument is plaintiff, defendant, plaintiff.
Judgement: The reasons
After argument the judge or magistrate must decide whether the plaintiff’s claim should be granted or dismissed. Interestingly enough, the court can also decide at this stage to order absolution of the instance regarding the plaintiff’s claim. In order to explain how a court decides in favour of a particular party, we need to understand what onus means.
Onus: This is the responsibility to prove your case and in most cases this lies with the plaintiff, although it ultimately depends on the law governing the subject matter of the case. In civil cases the party who bears the onus must prove his case on a balance of probabilities. (This differs from the onus in criminal matters, where the guilt of an accused must be proved beyond reasonable doubt.)
How is this done? The court must consider the evidence of both sides, and the procedure in civil cases is very much like placing weights on an old-fashioned scale. The winner is the party whose case weighs the most. “Weighs the most” means a combination of the evidence and the law as it must be applied to the facts in question. The court weighs up which of the versions presented by the witnesses is the most probable. It is not simply decided if someone was lying or not – a court seldom delivers such a judgement. If the court cannot decide which version is the most probable and the scale hangs in perfect balance, it is decided against the party bearing the onus.
How does the court evaluate a witness’s evidence? This is probably the most difficult part of a judge’s work for the layperson to understand, and extremely difficult to explain in simple terms. In the briefest and broadest terms possible, the court looks at the following three things:
(a) The credibility of the witness, in other words whether the witness has told the truth about a specific thing.
(b) The reliability of the witness – the opportunities that the witness had to experience or observe the event concerned, and the quality and independence of his recollection of it.
(c) The probability or improbability of each part of the witness’s evidence.
Judgement: The order
Unfortunately, the order of the court in both civil and criminal matters is called a verdict, and this often confuses the layperson. But the outcomes differ: the defendant who loses a civil trial must usually pay money to the plaintiff, or else he is ordered to do or prohibited from doing something; as opposed to a criminal trial, where the accused is given a prison sentence or sentenced to other punishment. If the defendant does not adhere to the order or the prohibition, he can be charged with contempt of court.