LITIGATION
The different types of litigation in practice include High Court and Magistrate Court litigation. Recently a Regional Court was introduced, which Court was granted a monetary jurisdiction of R 400 000.00 or less.
A Magistrates Court has a monetary jurisdiction of R200 000.00 whereas the High Court has unlimited monetary jurisdiction. A further distinction between the the Magistrate Court and High Court is that the Magistrates Court Act governs this Court and as such, it is a statutory creature and is bound by its Rules and Regulations. Until recently only High Court had jurisdiction to hear divorce matters or to grant interdicts. However, this jurisdiction has also been provided to the Regional Court, most likely in an attempt to lessen the crowded court rolls of the High Courts. All litigation concerning a persons status, for example insolvency, divorce matters etc is currently heard only by the High Court and in some instance by the Regional Court.
HOW DOES THE LITIGATION PROCESS START?
The litigation process starts with a consultation with an attorney to determine the merits of the case. If the merits warrant it, summons will be issued and served on the Defendant (Action), alternatively a Notice of Motion will be prepared for serves on a Respondent (Applications).
WHAT IS THE DIFFERENCE BETWEEN THE MOTION PROCEEDINGS AND ISSUE OF SUMMONS?
The motion process is a shorter process due to the fact that the dispute is decided mainly by affidavits submitted by both parties, i.e it is adjudicated on paper. Summons must be issued when there is a possibility of a factual dispute and it will be necessary to give oral evidence.
HOW SOON MUST SUMMONS BE ISSUED?
Generally most law suits prescribe within three years from the date that the cause of action arose and serving Summons, alternatively a Notice of Motion, will interrupt prescription. Having regard to prescription, it is important to note that his is governed by the Subscription Act and in some instance can become very complicated. Please consult your attorney should you suspect that prescription will relevant.
IN WHAT JURISDICTION SHOULD SUMMONS BE ISSUED?
When deciding in what court to issue Summons, usually the residential or work address of the Defendant/ Respondent will be the determining factor. However, a Court normally establishes jurisdiction on either persons or the causes of action.
HOW LONG DOES THE LITIGATION PROCESS TAKE?
How long is a piece of string? Litigation is a time consuming process due to the fact that attorneys must first exchange the necessary pleadings and only after the last pleading are served, can the parties attorney apply for a court date. However, other factors such a the service of documents by the sheriffs etc play a major part to time delays and, although the Rules of each Court make provision for time limits, these time limits may be waived by the parties (by agreement). Also, due to congested court rolls, allocation of a trail may see the litigants only taking the matter to court in the following year.
WHAT HAPPENS AT A TRAIL?
At the trail, witnesses are called to testify and have to go through examination by the attorney, thereafter must be cross-examined by the opposing attorney for the Defendant / Plaintiff and if necessary be re-examined again by the first mentioned attorney . In a civil case, the onus of proof is a balance of probabilities whereas in a criminal case, the onus of proof is beyond reasonable doubt.
WHAT ABOUT THE COSTS?
The general rule is that the successful party is entitled to his or her attorney’s cost on a party and party scale. Party and party costs is the costs for an attorney that is necessary and reasonable to let justice prevail and are prescribed by the Magistrate Court Rules and the High Court Rules. However, other costs orders may also be granted such as Attorney and Client (normally prescribed either by statute or agreement), and in severe instance a punitive costs order may be granted on an Attorney and own Client scale.
WHAT IF I AM DISSATISFIED WITH THE SERVICE GIVEN BY MY ATTORNEY?
Attorneys are bound by strict professional and ethical rules. If a client is dissatisfied with the professionalism of service delivered by an attorney, the client can report the matter to the relevant Law Society who will then investigate the matter.
Due to the fact that each case has different merits, the above is only guidelines and the process might differ depending on the facts of the case.
