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The law of procedure encompasses the rules by which the game of litigation is played. Why would you as a layperson want to know the rules? Because the rules can sometimes be the decisive factor in the 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 conference

Before 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. However, if it is ordered that the defendant must pay a sum of money, there is nothing apart from collecting the money that the successful plaintiff can do. A defendant who does not have money cannot, for example, be put in jail. This is why experienced lawyers know that the first thing they must establish if a client wants to bring a claim against a person or entity, is whether such a person or entity has the money to pay the potential judgement debt, or assets that can be attached. A judgement against someone who does not have any money means nothing; it only costs money. This will be our next topic of discussion.

1.5.1.1.3 The procedure after judgement: Costs and execution

Costs

The biggest shock most people get when they start litigating is how much it costs. That and the fact that those who give legal advice are so vague about what the eventual cost will be. There is a lot to be said about how expensive legal services are, but the reason why it is so difficult to predict how much a specific case will cost is simple: it’s impossible to predict how a court case will progress. For example, you issue a summons, the defendant does not defend the matter and you obtain judgement without a shot being fired. In that case, your account won’t be more than R5 000. However, if your case ends up in court, you should be grateful if your bill is less than R150 000.

Is the defendant going to defend the case? Who knows? Litigation can be so expensive that any amount you hope to receive from the opposing party is greatly diminished by the costs, which the losing party will have to pay. Many cases have ended up in the Supreme Court of Appeal because neither party could afford to lose, and I know of companies that have been bankrupted by the costs of litigating in a single case. Even if you are the successful party, you will receive only about 50 per cent of your costs from the opposing party. Furthermore, if you are unsuccessful, you are going to pay all of your own costs plus half the costs of the opposing side, and you won’t even have a court order in your favour to show for it.

Let me throw another spanner in the works, something that I have often seen. You sue for R250 000 in the high court. Your case is heard by a weak or sleepy judge who gives an incorrect judgement. Your legal costs are already through the roof. You could appeal with the aim of getting a correct judgement, but that is going to set you back a further R100 000, of which you will get back only about R50 000. What do you do now? Don’t ask me, I’m only an advocate … What would I advise? That you weigh up your chances of success as coldly and clinically as possible, and then decide calmly and rationally whether to litigate further, keeping a calculator by your side at all times. Then you must see if the bank is prepared to grant you a further bond. All of this must be done before you decide to litigate.

The execution procedure

This is the practical implementation of the court order. If the order is for someone to be evicted from a house, the execution process will involve a warrant being issued authorising the sheriff to remove the person from the property. The sheriff will go to the property, inform the person that he must leave the property and if the person refuses, he is removed (forcibly, if necessary) from the house. If he causes enough difficulty, the sheriff will call in the police to assist.

However, in most cases the execution process means that the person against whom a civil judgement for the payment of money has been granted (the execution debtor) is given a period of time in which to pay the money or to make arrangements with the person in whose favour the judgement was granted (the execution creditor – the one claiming the judgement debt). If the money is not paid or if satisfactory arrangements are not made for payment, the sheriff can seize any assets of the execution debtor (called an attachment in execution) and ultimately sell the goods at auction (called a sale in execution).

This is more or less what you need to know about the procedural side of an action.

1.5.1.2 Applications

1.5.1.2.1 The procedural course of an application

The procedure for an application is completely different from that of an action, and in the judgement other terms are used for what happens. Instead of a summons, there is a so-called notice of motion. Like a summons, this sets out what order you are asking the court to make. For example, supposing that you want information from a government department about a tender process in which you participated. You want the information urgently because you want to appeal against the decision to award the tender to one of your competitors. You do not have much time to do so, but the government department refuses to give you the information you want. What do you do? It won’t help to have a summons issued and wait months or even years for a court date. By that time the competitor who was awarded the tender would have already finished the work and been paid for it. Therefore, you launch an application and have it served in the same manner as a summons.

However, there is an important difference between an action and an application. In an application, evidence is given in the form of an affidavit (or affidavits) which is called the founding affidavit, and not orally at a court appearance, as is done in an action. It is customary with an application for no “trial” to take place. Instead the applicant sets out all his evidence in his founding affidavit. In our example, you will litigate against the government department and the other tenderer or tenderers. You (the one bringing the application) are called the applicant; the people against whom you bring the application are called the respondents.

If either of the respondents wants to oppose your application, they have a notice of opposition served. (“Served” means exactly as explained when dealing with actions above.) Instead of a pleading or a plea, they will also file a sworn affidavit (or affidavits), in which their evidence is set out in full. In these affidavits, which are called the answering affidavits or opposing affidavits, the respondent will respond to every statement that you have made in your founding affidavit, paragraph by paragraph, and state whether he agrees with it, if he has knowledge of it at all and whether he perhaps disagrees completely with what you have said. If so, he will say why he disagrees with you and will set out his version of events.

The applicant then has the opportunity to answer to this and he does so by way of a replying affidavit. The replying affidavit looks very much like an answering affidavit and works in exactly the same way. It is also limited to answers to allegations made in the answering affidavit.

With that, the evidence is (usually) complete. Unlike an action, the hearing of an application is relatively straightforward and consists only of arguments by both sides, although such arguments can be extremely complicated.

Before the date of the hearing, the applicant and the respondent exchange heads of argument, consisting of a written summary of the arguments that will be delivered in court. This is why judges often have a good idea of what they are going to decide before the hearing, as all the evidence and legal arguments are already on paper and known to them.

The hearing of an application

When an application is heard, the applicant argues first, followed by the respondent and then finally the applicant answers. The way in which evidence is weighed up in an application is different to that in an action, because in the case of an application the judge has not had the advantage of seeing the witnesses “in action” and has not heard the cross-examination testing the different versions given by the witnesses. The principle is that the evidence on which the applicant and the respondent agree is examined. This evidence is said to be common cause (also the case in actions). Where the evidence of the applicant differs from that of the respondent, the evidence of the respondent is accepted, unless it is so unlikely that it has to be rejected outright. The evidence that is common cause is looked at together with the evidence of the respondent (unless of course it has been rejected, in which case the applicant’s evidence is accepted). Using this evidence, the judge considers whether the applicant has proved his case.

If the applicant has proved his case on a balance of probabilities, the application is granted. If he has not done so, the application is dismissed.

1.5.2 More about actions and applications

There are some aspects of applications that do overlap with actions. For example, expert evidence can be given in both cases and in the course of an application, discovery of specific documents can also be requested. These instances are fairly technical in nature and are not very common.

One also needs to know what a counter application is. In many cases, an application for certain legal relief is brought. The respondent then usually answers by not only denying that the applicant is entitled to the order that he is asking for from the court, but also requesting that another court order be given.

Here is an example to explain this. Neighbour A trespasses on Neighbour B’s land by opening his gate and using his path to the sea. Neighbour B brings an application against Neighbour A on account of trespassing and asks that Neighbour A be ordered not to trespass on his property. Neighbour A answers that he has been using the path to the sea for more than thirty years and therefore has acquired a right of way to the path. He therefore denies that Neighbour B is entitled to the order that he wants, because he, Neighbour A, has acquired the right to use the path. He then goes further and brings a counter application for an order declaring that he is entitled to a servitude over the path to the sea.

Actions and applications sometimes go hand in hand and this can happen in one of two ways:

 Applications in actions. Sometimes in the course of an action, one of the parties does something unexpected, or a party cannot wait until the conclusion of the case before the court helps him, because it may already be too late by then. In such a case an interim or interlocutory application is brought for what is termed interim relief. For example, a plaintiff asks for the discovery of further documents and the defendant simply does not give them to the plaintiff. The plaintiff can then bring an application compelling the defendant to hand over the documents. If such an order is granted and the defendant still does not hand over such documents, the plaintiff can win the entire case simply on the grounds of the defendant not doing what he was supposed to do.

 Another scenario is where a plaintiff institutes action against a defendant, but the defendant is sitting with a large number of documents that the plaintiff is sure the defendant will destroy if he hears about this action against him. The plaintiff can then bring an application to preserve those documents for the purpose of the trial.

 Actions from applications. Sometimes an applicant brings an application that he thinks will be reasonably simple – there is not much in dispute about the facts. However, when the respondent answers, it appears that there are in fact many things he wants to dispute. In such circumstances, the applicant can request that the application be converted to a trial, so that the evidence can be properly heard in court and decided upon.

The example of the path to the sea will again assist in illustrating this. If Neighbour B does not have the same perspective of the path to the sea as Neighbour A and he has evidence that the path is not being used in the way that Neighbour A alleges, the case can be referred for evidence. The procedure from then on in such a case is very much like that in an action.