Short notes on:

UNDERSTANDING THE CIVIL LITIGATION PROCESS IN SOUTH AFRICAN COURTS

Introduction

Whether you are the plaintiff, defendant, applicant or respondent, it is important to know your rights,
options and recourse available in South African courts when seeking to resolve disputes, collect
debts, or enforce contracts. I will provide a comprehensive overview of the basic concepts involved
in litigation, which every person should be familiar with, even if you are not an attorney.

A summary of the monetary jurisdictions is conveniently available on our website1 and will as such
not be repeated. In addition, what the alternative dispute resolution process entails. Alternative
dispute resolution is becoming more and more popular to resolve disputes between parties. With
that being said, there are, however, numerous instances where approaching court, or even
summonses to appear is unavoidable.

Before one embarks on a process in the courts, it should be established what relief is sought. In
other words, you should decide what the ideal outcome is that you are looking for. The relief sought
when going to court in a civil matter or dispute, is usually a demand for payment of a sum of money
owed to you, demanding damages or performance in terms of an agreement, which is basically the
fulfillment of an obligation by the other party. Generally, the first step in the legal process is a letter
of demand, which is sent to the other party. A letter of demand sets out the cause of action on which
the demand is based, and the other party is then given time to either reply, or comply with the
demand. If the demand is met, no further steps will be taken.

Jurisdiction of the Courts

Should the demand not be complied with, the matter can be referred to court. Jurisdiction refers to
the authority or competence of a certain court to hear a matter, and to be able to grant relief in
respect thereof. One should determine whether the High Court, Regional Court, or District Court, or
even a small claims court has jurisdiction to hear the matter. The court’s jurisdiction will be
dependent on the type of the claim and the value of the claim. The monetary values of different

1 http://www.schoemanlaw.co.za/services/civil-litigation-and-alternative-dispute-resolution/
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jurisdictions are set out in the link to our website provided above. Regardless of the monetary
jurisdiction of the courts in terms of the rules, the parties may however still agree to the jurisdiction
of a specific court. This will have some implications when seeking for costs in a matter, but will not
be discussed herein. There are certain matters which may only be heard in the High Court regardless
of the quantum involved in the claim or dispute. Once the correct court, whether High or Magistrate’s,
has been established, one must determine which seat or area of the court. As a general rule, a court
will exercise jurisdiction on the basis that the defendant is resident or domiciled in the area of the
court or if the cause of action arose in that area.

Action or Motion Proceedings

Once it has been determined in which court a matter is going to be referred to for litigation, it is
necessary to decide whether to proceed by way of trial (action), or by way of a motion (application).
In determining whether the appropriate process is by way of action or motion, one should ask
whether a material dispute in fact is anticipated or not. If a dispute of fact is anticipated, it is generally
best to proceed with an action. This eventually ends up at trial, where witnesses may be called to
lead oral evidence. On the other hand, if no material dispute of fact is anticipated, then motion
proceedings are most likely the fitting process to be followed.

In motion/ application proceedings the matter is determined based on the papers. This means that
submissions are made by way of sworn affidavits, and generally no oral evidence is allowed. In a
trial, the evidence before court can be tested by cross-examination. In the application process it is
sometimes more difficult for courts to decide between conflicting versions. The advantage though,
is that an application is usually speedier and more cost effective than action proceedings.

Action Procedure overview

Pleadings phase:

An action is instituted by way of the issue and serving of a summons. The purpose of thesummons
is to bring the plaintiff’s claim to the attention of the defendant by informing the defendant of the
nature of the plaintiff’s cause of action and the claim made. The summons must be served on the
defendant by a sheriff in terms of the rules of the court. After having been served with a summons,
the defendant will generally have 10 days to give the plaintiff its notice of intention to defend the
action. After such notice have been given, the defendant should either deliver its plea to the

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particulars of claim in the case of a combined summons, alternatively, in the case of a simple
summons, the plaintiff will deliver a declaration setting out its cause of action in more detail. The
defendant’s notice of intention to defend must clearly and in accordance with the rules of the court
stipulate an address whereat the defendant will take receipt of further pleadings and notices. This is
typically the address of the defendant’s attorneys should the defendant wish to be represented by
legal counsel, which is recommended.

Should defendant not enter into appearance 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, the plaintiff
may apply for default judgment without further notice to the defendant. Where default judgment is
granted, the plaintiff may demand compliance with the judgment.

Sometimes it happens that the defendant was never aware of the service of the summons. In these
circumstances 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 defendant’s failure to give notice of intention to defend and explaining
the nature of the defense that will be raised. This application needs to be brought within one year of
the defendant first having notice of the judgment against him. Due to the complexities involved
regarding these applications, it is advised to seek legal assistance.

Where the plaintiff is seeking speedy judgment at an early stage without the delay and expense of
a trial, summary judgment can be sought in certain circumstances when an action is defended. In
most instances the plaintiff will be granted summary judgment where the defendant has no bona fide
defense and has entered an appearance to defend solely for the purposes of delaying the action.
Such application can only be brought where the defendant has delivered a notice of intention to
defend, the plaintiff’s case is based on a liquid document or a liquidated amount of money, the
delivery of specified movable property, or ejectment from property, and the plaintiff believes that the
defendant does not have a bona fide defense and is merely trying to delay judgment.

During the pleading phase of litigation, either party has the option to file an exception to any pleading,
where, for example; the pleading is vague and embarrassing, or it lacks the statements necessary
to sustain a cause of action or a defense. An exception to a pleading needs to be delivered before
any further steps has been taken in response to a pleading of the opposing party.

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The next major step in the action process is for the defendant to file its plea. This is the document
that set out the defense upon which the defendant relies and must contain a paragraph-by-
paragraph reply to every allegation made by the plaintiff in the particulars of claim. The defendant
will admit, deny or confess and avoid each of these specific allegations. Where a defendant fails to
deal with a specific allegation, then the allegation will be deemed to be admitted.

In addition to the plea, the defendant may raise a special plea with a special defense, which will
either destroy the cause of action, or postpone the operation thereof. The defendant may also decide
to file a counterclaim should it have a separate cause of action against the plaintiff. The defendant
is obliged to file a counterclaim at the same time he/she filing the plea. The plaintiff does not need
to deliver a notice of intention to defend the counterclaim, but the plaintiff must then deliver a plea
to the counterclaim, in which the plaintiff must set out its defense to the counterclaim. The plea to
the counterclaim must be delivered at the same time as a replication, if one is to be delivered.

Trial preparation phase:

Once the parties have filed all its pleadings, the pleadings are considered to be closed. Now, before
the matter can go to trial, there are many crucial procedures that need to take place. Very briefly,
this includes discovery, applying for a trial-date, having a pre-trial conference, requesting security
for costs, and possible settlement discussions.

Discovery is one the most important steps in preparing for trial and is based on the principle that a
party is entitled to have knowledge 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, prior
to the hearing. 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 party’s 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 this general rule, which will not
be discussed in this article.

Once the preparations are complete, the matter may be set down for trial. This is where each party
will lead oral evidence, which in turn may be tested under cross-examination by the opponent, in
order for the court to come to a decision.

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Application procedure overview

Also known as motion proceedings, the application procedure is based on the exchange of affidavits.
The party bringing the application is known as the applicant and the party opposing the application
is the respondent.

The applicant will issue a notice of motion which states the claim and the relief sought. This notice
is supported by the applicant’s founding affidavit together with annexures thereto, which will be used
to support its claim against the respondent. The respondent will then have the chance to oppose,
and subsequently file its answering affidavit. In this affidavit, the respondent will address the
applicants allegations in the founding affidavit.

The applicant will have the opportunity to respond in a replying affidavit. The parties must include all
the relevant facts in the affidavits, as the argument in court will be limited to oral argument by the
representative of both parties. No further evidence will be submitted once both parties have had a
chance to submit affidavits and the matter is set down for hearing. Since all evidence is placed
before the court in affidavits, a number of procedures that take place in action proceedings are not
applicable in application proceedings.

Conclusion

This brief overview outlines the process involved in both action and motion proceedings and also
illustrates how the process can become complex fairly quickly. It is therefore recommended that one
obtains legal assistance in litigation proceedings, in order to be certain that all the procedural steps
are followed according to the rules of the court. It is better to have someone who is well versed in
presenting evidence to the court and to assist during the process. Contact an expert at
SchoemanLaw Inc. for sound advice and assistance in any civil litigation process you may be
involved with or implicated in.

© André Nortjé | SchoemanLaw Inc 2016

t +27 (0) 21 425 5604 f +27 (0) 21 421 8913 e enquiries@schoemanlaw.co.za w www.schoemanlaw.co.za