Читать книгу South African Law - François Smuts - Страница 8

And here it is: a list of terms you will need for most discussions about the law. I know that most people don’t enjoy vocabulary lessons – neither do I. However, I do suggest that you take a deep breath and go through the list, as it will be extremely useful for understanding the rest of this book. And you can refer back to the list when you encounter any tongue-twisters or brain-teasers later (set in italic text).

absolution from the instance – a court order that means that the plaintiff does not succeed in a civil action because of insufficient evidence. If an order of absolution is given, the plaintiff is entitled to attempt to prove his case again if he is able to obtain better evidence, which is not possible if the action is dismissed.

accused – the person who has been charged with committing a crime in a criminal case.

acquittal – if in a criminal case the state has not proved its case beyond reasonable doubt, the accused gets an acquittal. We say that the accused is found not guilty and discharged.

action – one of the two ways of bringing a civil action (the other is an application). An action commences when someone sets out his case in broad terms in a summons and also states what order he is seeking from the court and then has the summons served on the person against whom he is issuing the action. Such a document is not used in an application. After the summons has been served, a number of documents are exchanged between the parties so that the issues about which the parties differ are set out and clarified, and notice is given by each party to the other of what documents they are going to use, whether they are going to be calling expert witnesses, etc. The hearing of an action involves people standing in a witness box and giving evidence while being questioned under oath, which is another way in which an action differs from an application.

amendment – a change, usually to a pleading. It can also mean a change in a law or a contract but in this book it is used only in the first sense.

answering affidavit(s) – the sworn affidavit(s) in an application in which a respondent answers an applicant’s founding affidavit(s) point by point and gives his own version of events.

appeal – the procedure when one of the parties in a case is of the opinion that the court’s judgement is wrong and therefore follows a process to have the judgement and court order, changed by a court with higher authority.

applicant(s) – the party(ies) who launch(es) an application. These may include people or legal persons (entities), for example companies, trusts and so on.

application – one of the two ways of bringing a matter to court (the other is an action). Applications are generally used in cases where there is not a substantial dispute between the parties with regard to the facts, but there is a dispute regarding the legal principles that must be applied to it. The hearing of an application consists only of arguments that are set out in the application documents, which are called application papers or “the papers”. Generally speaking, the papers consist of two parts: a notice of motion, in which the party bringing the application states what he is asking of the court; and sworn affidavits, in which the evidence stating why the party bringing the application is entitled to the relief he is asking from the court is set out on paper.

argument or submission – at the end of any case, the legal representatives of both parties present their arguments to try to convince the judge why their client should win. These are called arguments or submissions. Submissions are the building blocks of such an argument. In the case of a motor-vehicle accident, for example, I would submit that my client’s evidence should be believed rather than the evidence of the other party. I would then give reasons to support this submission and use these together with other submissions in support of the argument that my client should win the case.

bar – when the time for the delivery of a plea to an action has passed without the defendant having pleaded, the plaintiff can send a notice to the defendant compelling him to plead within a certain period after which he will be barred from pleading. If he does not do so, the plaintiff may apply for default judgement.

beyond reasonable doubt – the manner in which it is decided in a criminal case whether an accused is guilty or not and, at the same time, the hurdle the state must overcome in order to prove its case against an accused. If the judge has reasonable doubt as to whether the accused’s version is possibly true and/or if the accused is possibly not guilty, then his version is accepted and/or he is acquitted. If an accused is found guilty, he is, in other words, found guilty beyond reasonable doubt. Compare this with on a balance of probabilities, the standard used in civil cases.

burden of proof – see onus.

case – a dispute between two or more parties that goes through the formal court process.

civil case or matter or proceeding – any case that is not a criminal case. This definition may sound unhelpful, but civil cases can be conducted around a wider variety of topics than can be covered by a single definition.

clerk of the court – the official in the magistrates’ court who attends to the administrative side of court cases.

closure of pleadings – an important point in time in an action, when it is clear from the pleadings what the issues in dispute between the parties are. The Latin phrase is litis contestatio.

common cause/evidence – evidence about which the parties in a case are in agreement and which is therefore not part of the issues in dispute. The term is also used when the parties agree about which legal principle applies to a specific issue in the case.

constitutional law – legal rules and principles that concern, or flow from, the provisions of the Constitution.

convention – used when parties claim something from each other in an action and you therefore do not just have a plaintiff who is claiming something and a defendant who denies that the plaintiff is entitled to it. It is a situation where there are two plaintiffs and two defendants, which can be rather confusing. The initial plaintiff and defendant are called the plaintiff and defendant in convention. When referring to the defendant’s claim against the plaintiff, he becomes the plaintiff in reconvention and the plaintiff becomes the defendant in reconvention.

costs – the money that it costs to conduct a court case. This can also refer to the so-called cost order, which forms part of the court order that is ultimately made at the end of a case, and which states who must pay the costs of conducting the court case. If, for instance, the plaintiff loses the case, the court order would normally declare: “Plaintiff’s action is dismissed with costs.”

counter application – when a respondent in an application brings his own application, as part of the same application. For example, you bring an application against me to forbid me from entering your land. I then bring a counter application for a court order stating that I have a right of way over your land.

counterclaim – when a defendant institutes his own action against the plaintiff as part of the same action. For example, you bring an action against me for payment of the balance of the contract price for building work you did for me. I then bring a counterclaim against you because I have had to have your bungled workmanship put right, costing a lot more than the balance of the contract price. The dispute is usually about the same set of facts, but seen from different perspectives.

court – a word with several meanings. Firstly, the physical court building and secondly, the court as an institution in the general sense. The most important and most confusing meaning is that of a specific court, consisting of legal representatives and the judge or magistrate.

court order – an order made by a court.

credibility – a judgement about whether a witness’s evidence can be believed or not. This always runs alongside another judgement about the probability of evidence. The two are, however, not the same because to say that I shot a lion in the head from a distance of a thousand paces may be improbable and therefore not credible. If, however, I have three witnesses who confirm it, it remains improbable but becomes more credible. Evidence can even be probable but not credible, although this is seldom the case.

creditor – a person or entity to whom money is owed.

crime – an act forbidden and punishable by the state.

criminal case – the case between the state and a person charged with committing a crime.

criminal procedure – the formal rules in terms of which criminal cases are conducted and administered.

criminal sanction – when an act committed by a person is punishable by the state.

cross-examination – the second part of the oral evidence given by a witness in a trial. The witness is questioned by the opponent’s legal representative in an attempt to discredit the witness’s evidence or to elicit favourable evidence for the opposing party.

debtor – a person or entity owing money in a transaction.

declaratory order – when two parties are unsure of what their rights are, they can ask the court to give finality on whose interpretation of the legal position and their respective rights is correct.

default judgement or judgement by default – a judgement that is given in an action either because the defendant did not defend the action or because he has not delivered his plea timeously and has therefore been barred from doing so. With a default judgement, the judgement is given as if the plaintiff had proved his case without opposition or contradiction.

defence – the reason(s) why a defendant thinks that a plaintiff in an action should not be successful.

defendant – the party against whom an action is brought.

delict – an act or omission whereby someone suffers damages and to which the law attributes fault, and which is not excusable in some or other way (put differently, it is said to be “unlawful”).

discovery – the process whereby copies of documents to be used in a case are given to the opposing party. Initially each party discloses its documents to the opponent in a sworn affidavit. The opponent may respond to this by asking for specific documents that have not been disclosed. Discovery is used to prevent your opponent from being taken by surprise by the use of documents at the trial.

dismissal – when the state has finished leading its evidence in a criminal case and there is insufficient evidence on which to find the accused guilty. Application for dismissal is then made and if the application is successful, the accused is released without having to give evidence. This application is not an ordinary application because oral evidence has already been led. An application is therefore not made in the usual way, but simply argued.

dismissed – a court order meaning that someone who brings an application or an action is unsuccessful. The difference between such an order and absolution from the instance is that once your application or action has been dismissed, you cannot try again. See also granted.

domicilium citandi et executandi – a phrase one often sees in contracts. Translated literally, it means “where the party may be cited and where attachment in execution can take place”. In plain language, it is the address where notices and court pleadings can be delivered. (Execution can take place anywhere a person against whom a court order has been obtained finds himself.)

ex parte – bringing an application against a person without giving notice to the person against whom the application is being brought. This is done if the application is very urgent, if giving notice would thwart the purpose of the application, or if it would make no sense, for example if the person is mentally incapacitated.

examination in chief – the first part of a witness’s oral evidence in a court. It consists of the legal representative of the party who called the witness asking a number of questions in order to extract evidence that is favourable to the party concerned.

exception – a technical objection against a plaintiff’s particulars of claim or against a defendant’s plea, either because it is without sufficient grounds or because it is vague and embarrassing.

execution – the process whereby a court order is carried out. If, for example, a court orders that money is to be paid, execution means that money is recovered from the person who owes it. This can be done either by collecting the money from the person or by selling the assets of that person. This is always done by the sheriff.

execution creditor – the party in whose favour a judgement is given and who can therefore demand payment of the judgement debt. See creditor.

execution debtor – the party against whom a judgement is given and who is therefore liable to pay the judgement debt to the execution creditor. See debtor.

expert evidence – evidence by a specialist containing opinions that can help the court to reach a finding about something of which it does not have expertise itself. Good examples are medical evidence about the consequences of bodily injuries and experts on speedometers at trials about speeding offences.

filing – handing in a document at the office of the registrar or clerk of the court. Filing gives official status to the document.

founding affidavit(s) – the first affidavit or set of affidavits in an application, in which the applicant and his witnesses set out his evidence.

further particulars – particulars which you request from an opposing party in an action to tell you more about his case so that you can prepare for the trial.

further party – a party such as a third party or intervening party who becomes party to an action or application.

granted – an application is granted if it is successful. See also dismissed.

heads of argument – a document summarising the submissions that will be used in argument. Heads of argument are given to the judge and to the opponent’s legal representative before final argument to give them a chance to weigh up and consider the submissions.

in camera – when a court is closed to the public, unlike normally, when it is open to the public. Only the legal representatives, necessary court officials, parties (or the accused in a criminal case) and the judge or magistrate are allowed in the court.

in forma pauperis – when a poor litigant is given free legal representation.

interdict – a type of court order that orders someone to do, or refrain from doing, something.

interim/interlocutory application – application in an action to bring about something that is relevant to conducting an action. If, for example, one of the parties refuses to discover, his opponent can bring an interim application to compel him to do so.

interim relief – a court order that is given pending the final outcome of a case.

intervening party – when an outside party who is not involved with one of the existing parties to an application, wants to be part of an application. The outside party does this because he thinks that the application also affects his rights. For example, A brings an application against B, a state hospital, for an order to perform an abortion on her. C, the father, can intervene because the child to be aborted is also his child and he is opposed to abortion.

issues in dispute – the issues about which the parties in a court case differ. If, for example, I allege that you were the sole cause of the accident and you deny this, this is an issue in dispute between us. Issues in dispute can be divided into disputes of fact when the parties’ versions of what happened differ from each other, and disputes of law when the parties disagree on which legal principles are applicable and how they must be applied.

judge – the official who presides in one of the higher courts, such as the high court or the Supreme Court of Appeal.

judgement – the reasons given by the judge or magistrate for the court order that is finally given. In civil cases, a judgement is the court order given by the court in favour of the successful party and against the unsuccessful party, which is not a punishment, as is the case with a sentence in a criminal case. A court order dismissing a plaintiff’s claim with costs is an example of a sanction in a civil case, which to some extent resembles a sentence in a criminal case.

lawful – a word that can be confusing because it can be a synonym for both statutory and just. It can therefore mean that something is “in accordance with a law” but can also have a wider meaning, namely that something is “in accordance with the provisions of the law in general”. One has to look at the context in which the words are used to know what is meant in a specific case. If something is lawful it is usually also just, but the reverse is not necessarily true.

lawfully – by law, rightfully or in accordance with the law, and a synonym for legally.

legal aid – as a general term, this means that a private person obtains legal representation. It also has a more specific meaning that is more commonly used, namely that a poor person obtains legal representation funded by the state. Legal aid is also available for government officials who are charged for acts committed in the course and scope of their employment. This is how we get the peculiar situation in which very rich politicians litigate at the taxpayer’s expense.

legal representative – someone with a legal qualification who represents a party in a court case.

litigant – synonym for party.

litigate – the verb derived from litigation.

litigation – the process of conducting a court case.

magistrate – the official who presides in a magistrates’ court. See also judge.

Master of the high court – more often referred to as “the Master”. This is a separate office of the high court that supervises and keeps records of estates: insolvent estates, deceased estates, trusts and the estates of mental patients. There is a specific official called the Master.

medico-legal examination and reports – medical examinations that a plaintiff in an action undergoes so that the extent, history and prognosis of his condition can be determined, and the reports that medical experts draw up with reference to such examinations. See also expert evidence.

merits – the grounds on which a party requests a court order. If he asks for a sum of money, then the merits exclude proof of the amount.

motion – the same as an application.

negligence – one of the components of a delict that states that an act or omission deviates from what a reasonable person would do (or not do) in a specific situation.

notice – a document used in litigation informing someone of something that has happened or is going to happen.

notice of intention to defend – the notice that notifies the plaintiff in an action that the action is going to be opposed (or defended).

notice of motion – a notice that is the first document in an application, in which the applicant sets out what he is asking of the court. If, for example, my neighbour habitually makes a lot of noise late at night, I would ask in my notice of motion for the court to order him to stop making a lot of noise.

notice of opposition – the notice that notifies the applicant in an application that the application is going to be opposed (or defended).

on a balance of probabilities – the burden of proof in a civil case that places the burden on the party that bears it to prove that his version is more probable than that of his opponent. Compare this with beyond reasonable doubt, the burden of proof in criminal cases.

onus – the burden of proof placed on a party to prove his case. This means that if the court cannot decide which party’s version of events to accept, it will decide against the party that bears the onus. Also called the burden of proof.

opposing side or opposing party – opponent in an action or application.

oral evidence – evidence that is verbally given in court. Also sometimes colloquially referred to as “evidence under oath”, though, strictly speaking, the latter includes evidence given in a sworn affidavit. The witness stands in the witness box, the oath is taken by the witness (“Do you swear that the evidence that you will give is the truth, the whole truth and nothing but the truth, so help me God?”) and everything that the witness says about the case after that is evidence under oath.

papers or court papers – the documents drafted during a court case. These include process documents in actions and all documents in applications.

particulars of claim – the part of the summons in which the plaintiff sets out what he is seeking from the court and his reasons for the request. If you are in possession of my car, the particulars of claim would state who I am, who you are, that I am the owner of the car and that you are in possession of it. I would then ask the court to order you to return the car to me and to order you to pay the costs of the court case.

party – the person or entity who is directly involved in litigation. This is often used together with opposing party or opposing side, meaning “the party on the other side”. If I institute divorce proceedings against my wife, we are the parties in the lawsuit and she is my opposing party or the opposing side. Our children are also involved in the litigation but they are not directly involved and are therefore not parties to it.

plaintiff – the person or entity who institutes an action.

plea – document in an action that sets out in detail why a defendant does not agree with a plaintiff’s case and thinks that it must fail.

pleadings – documents in an action that set out the issues in dispute.

pre-trial conference – a meeting between the parties in an action held prior to the trial in accordance with prescribed rules, to try to keep the trial as brief as possible and to reduce the issues in dispute between the parties.

prima facie – a commonly used Latin term, the precise meaning of which depends on the context in which it is used. However, the usual meaning is “from an initial impression” or “without considering the other side of the matter”.

private law – the part of the law that has to do with the rights of and legal relationships between private individuals.

pro Deo – a Latin term that, if translated literally, means “for God”. These days it usually means “with state funding” because it is used when the state pays for the legal representation of a pauper who is the accused in a criminal case.

probability – a judgement about evidence that indicates whether it conforms to general life experience. It is improbable to say that you have been attacked by a blue dog with two heads, while it is probable to say that your neighbour’s Rottweiler bit your hand. See also credibility.

process document – collective noun referring to any of the documents used in a court case. The process document includes but is not limited to the pleadings. It also includes notices.

prosecution – the conducting of a criminal case by the state.

provisional sentence – a process by means of which an action is initiated and conducted when the cause of action arises from a document or documents that clearly show the indebtedness of the defendant.

public law – that part of the law dealing with statutory or public bodies, such as Telkom, their relationships with each other and their relationship with citizens of the country.

quantum – the amount being claimed in a civil case. This is a separate issue from the merits of the case and is often argued and considered separately.

reasonable – in accordance with sound understanding, fairness and justice. It is often used as a measure of what society considers “right”.

reconvention – as opposed to convention. See convention.

re-examination – literally, the “second examination”. This is the last series of questions that can be asked of a witness in a court case by his own legal representative and follows examination in chief and cross-examination. It is restricted to questions that follow on the questions put to the witness in cross-examination.

registrar of the court – the clerk of the high court who deals with the administrative side of court cases.

replication – an answer by a plaintiff to a defendant’s plea.

reply – the opportunity given to a party to respond to his opponent, either by way of a sworn affidavit in an application, an answer to a written defence (see replication) or by way of argument if in court.

replying affidavit – the third set of sworn affidavits in an application. It is the applicant’s answer to the respondent’s answering affidavit.

respondent – the party against whom an application is brought.

review – the process that is followed when a person is of the opinion that a decision was taken that affects his rights and that there was something wrong with the process that was followed in reaching that decision. Compare this to appeal.

rule nisi – a court order that calls on your opponent to come forward at a later date to say why an order in your favour (called a final order) should not be given by the court.

sentence – in criminal cases, the punishment that the court imposes on the accused after he has been found guilty, for example a fine or a prison sentence.

service/to serve – the process whereby the sheriff delivers a document to a person and afterwards gives a report of how he did so to the person who gave the instruction. This is the way in which the legal system ensures that someone receives a document.

set of facts – the total of a collection of facts about which one can determine the legal position. Often the addition or removal of a single fact can radically change the legal position.

settle/settlement – this is what happens in a court case when the parties reach an agreement about what the outcome is to be. A settlement is a contract and is almost always made an order of court, and with that the court case is ended.

sheriff – the messenger of the court who serves legal documents and court orders.

summary judgement – a shortened procedure followed in an action where a sum of money (usually) is being claimed and the plaintiff is of the opinion that the defendant does not have a defence. The defendant then sets out his defence in a sworn affidavit and the court decides whether there is merit in the defence. If there is no merit in the defence as set out, summary judgement is granted and that is more or less the end of the road for the defendant’s defence of the case.

summons – the document that initiates an action. It contains the details of the plaintiff(s) and the defendant(s), and the particulars of claim.

sworn affidavit(s) or affidavit(s) – affidavit is the shortened term for a sworn affidavit, which consists of evidence on paper. Evidence is the rendering of facts under oath. A sworn affidavit must be commissioned by a commissioner of oaths, who must ask the person making the affidavit if he knows and understands the contents thereof, if the contents are true and correct and whether he considers the oath binding on his conscience.

third party – someone who was not initially involved in a case but is brought into the matter by one of the parties because the dispute between one of the parties and the third party is more or less the same as the dispute between the original parties.