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courts and court procedure

Innovation in the SA court system

Posted Fri, 08/12/2006 - 13:49 by Paul

I have written about the inefficiencies of the court system and have made the odd suggestion here and there about how the court system could be improved using readily available technologies. It turns out that the Department of Justice has been working at improving court processes through its Integrated Justice System. So what is the Integrated Justice System?

In recent years, departments within the JCPS Cluster have taken significant steps towards modernising and integrating the CJS. Following government's approval of the NCPS in 1996, the IJS Board was formed in 1997 to integrate the activities of departments in the cluster in a co-ordinated manner.

The IJS, approved in 2002, aims to increase the efficiency and effectiveness of the entire criminal justice process by increasing the probability of successful investigation, prosecution, punishment for priority crimes and ultimately rehabilitation of offenders.

A second version of the IJS was published in May 2003.

Issues that are receiving specific attention include overcrowding of prisons and awaiting-trial prisoner problems (currently dealt with by the Department of Correctional Services), as well as bail, sentencing and plea-bargaining (currently dealt with by the Department of Justice and Constitutional Development).

Government at all levels wants to eliminate duplication of services and programmes. The need for strategic alignment of cluster activities was also raised at a series of other governmental meetings and fora.

Benefits of proper alignment include:

  • less duplication of services
  • effective use of scarce and limited resources and skills
  • joint strategic planning and programmatic approach instead of reacting to problems.

During the latter half of 2002, the IJS Board responded to the challenge and initiated a process to co-ordinate and align activities beyond the IJS. In response to this, a development committee was established in 2003 and mandated to align the
shared objectives of cluster departments.

The JCPS has structured itself to focus on two main areas of responsibility, namely operational and developmental issues relating to the justice system, and improved safety and security of citizens.

One of the manifestations of this project is the e-justice programme which was featured on the Sunday Times website a couple weeks ago. The programme was introduced in the Durban Magistrates Court earlier this year and has enjoyed tremendous success since then. The Department of Justice anticipates that every police station and court will be connected to this system by 2008.

The system essentially involves making dockets and other necessary information available online. It resolves the age old problem of dockets getting lost or walking out the court and makes the information more readily accessible to everyone on the system. In time South Africa will see a nationwide system which has photographs and fingerprints of the accused together with relevant information made available to every court and police station. I suspect this will also have an impact on the civil courts and hope to see electronic filings become a reality in the near future.

Trial actions: forms of court proceedings

Posted Wed, 04/01/2006 - 22:31 by Paul

This is the third part of our introduction to our civil court system. These articles are intended to introduce you to some of the concepts you will encounter in our civil court system. These principles are not applicable in every case and we urge you to discuss them with your attorney in the context of your specific case.

As we mentioned in our previous post, there are two forms of proceedings in our civil courts: application (or "motion") proceedings and action (or "trial") proceedings. This post is concerned with the latter.

Essentially this form of proceeding is used where there is bound to be a material dispute of fact and it will be necessary to lead evidence to resolve that dispute. The form of process that initiates and embodies a claim in an action is a "summons" which is often supported by a document called "particulars of claim". The summons is prepared by a "plaintiff" and issued by the clerk or Registrar of the Court (depending on whether you are suing out of the Magistrates Court or the High Court) and delivered to the Sheriff of the Court for formal service on the party being sued, namely the "defendant". The summons describes the parties and outlines the claim against the defendant and sets out the details of the plaintiff's attorneys whereas particulars of claim (or the declaration - see below) details the claim and the basic facts underlying the claim.

Once the summons has been served on the defendant, the defendant has either five or ten court days (again dependent on whether the proceedings have been instituted in the Magistrates Court or High Court) to file a notice of intention to defend the action. This notice informs the plaintiff that the defendant is defending the action and sets out the defendant's attorneys' contact details. As an aside, both parties must have an address for service of documents within eight kilometres of the Court so if the parties' attorneys are outside the eight kilometre radius, they must appoint a firm of attorneys within that distance to receive documents. These latter attorneys are referred to as correspondent attorneys and are the agents of the 'primary' attorneys.

If the defendant does not file a notice of intention to defend either in time or at all, the defendant is in default and the plaintiff is entitled to apply for default judgment against the defendant. In practice, judgment will probably not be granted against the defendant if the defendant manages to file a notice of intention to defend before the relevant court official attends to the request or application for default judgment. Often a clerk or Registrar is charged with processing requests or applications for default judgment.

Assuming the defendant files a notice of intention to defend, the plaintiff may be entitled to apply for "summary judgment". This is a procedure that the plaintiff may invoke where the claim is for a "liquidated amount in money"; "the delivery of specified movable property"; ejectment or is based on a "liquid document" (where the amount claimed is evident from the document itself without reference to any further evidence). The plaintiff must further establish that the defendant has filed a notice of intention to defend solely for the purpose of delaying the matter and that the defendant has no "bona fide" defence. If successful, the plaintiff may be awarded judgment at this early stage without having to proceed further with the trial.

We must pause to point out that if a plaintiff issues what is known as a "simple summons" then the procedure changes slightly (this procedure is really only used in the High Court). A simple summons is used in certain circumstances and does not enclose particulars of claim. Rather the plaintiff is required to file a "declaration" if the defendant files a notice of intention to defend in response to a simple summons. The declaration details the plaintiff's claim in much the same way as particulars of claim.

There are two ways for the defendant to overcome an application for summary judgment: it can put up sufficient security to satisfy the amount claimed or it may file an affidavit setting out its bona fide defence. Summary judgment is not often granted as the Court will not entertain debate about the merits of the defendant's purportedly "bona fide" defence (if an affidavit is filed) as the preferred course of action would be to have the matter properly ventilated in open court. Of course, if the defendant puts up adequate security, the Court will not grant summary judgment and will similarly order that the matter proceed to trial. This is known as the defendant being granted "leave to defend".

The next big step is the delivery of the defendant's "plea". The plea is the answer to the particulars of claim (or declaration) and sets out the defendant's defence as well as a possible counter-claim (to which the plaintiff would be afforded an opportunity to respond in the form of a "plea in reconvention". A plaintiff may also respond to a plea that doesn't contain a counter-claim with a "replication" where the plaintiff feels it is necessary to address allegations made in the plea.

Once the plea is filed there is usually a delay until after any further pleadings have been filed or the time period for the filing of a further pleading has ended and the pleadings are regarded as closed. At this stage a number of things begin to happen. The sequence of events often vary and the time periods become a little elastic in practice. Some of the steps you can expect are as follows:

  • the parties' legal teams will arrange a pre-trial conference (designed to limit the issues and duration of the trial by reaching agreement on as many issues as possible and even on alternative fora for certain aspects of the dispute);
  • discovery notices will be sent out, initiating the discovery process (each party is required to disclose all documentation and information in its possession and which is relevant to the matter at hand and not privileged from disclosure);
  • witnesses and experts will be identified and consulted with;
  • a trial date will be applied for (either party may apply for a trial date and given delays of a year or more it is often a good idea to apply for a date as soon as possible);
  • requests for further particulars are normally sent out closer to trial (these notices call for more information about the plaintiff's claim and/or the defendant's plea/counter-claim); and/or
  • "interlocutory" applications which may include applications to compel responses to some of the above requests and notices (an interlocutory application differs from the applications discussed in our previous post in that an interlocutory application is a subset of the main action and usually deals with a procedural aspect - service and issuing of these applications are handled differently as well).

Unless the action is settled between the parties, everyone will find themselves in a court room at some point. It can take several years before this happens if trials are postponed or if the court rolls are congested (or both). The usual procedure at a trial is as follows:

  • lawyers for both sides will have an opportunity to make opening statements to the court (starting with the plaintiff's lawyer);
  • the plaintiff's lawyer will lead the plaintiff's evidence by calling witnesses;
  • the defendant's lawyer gets to cross-examine the plaintiff's witnesses;
  • the plaintiff's lawyer has an opportunity to revisit the plaintiff's witnesses' evidence and deal with issues that the defendant's lawyer highlighted during cross-examination;
  • the process repeats with the defendant's lawyer leading the defendant's witnesses' evidence; the plaintiff's lawyer cross-examines and the defendant's lawyer revisits the defendant's witnesses' evidence;
  • the Magistrate or judge may ask questions along the way;
  • once all evidence has been led, each side's lawyers will present legal argument and closing arguments;
  • the Magistrate or judge will consider the evidence led and arguments made and hand down judgment (often some time after the actual hearing).

One of the disadvantages of the trial procedure is that it can take quite a long time to achieve some kind of resolution of the dispute mainly because there seem to be severe delays in being allocated trial dates in many of our courts, particularly the High Courts. These delays tend to frustrate litigants and understandably so. On the other hand, where there has been an injustice or a party has suffered a loss as a result of the wrongful conduct of the other, this may be the only procedure available to address this.

Actions and applications: forms of court proceedings

Posted Thu, 29/12/2005 - 02:54 by Paul

This is the third part of our introduction to our civil court system. These articles are intended to introduce you to some of the concepts you will encounter in our civil court system. These principles are not applicable in every case and we urge you to discuss them with your attorney in the context of your specific case.

There are two forms of legal proceedings in our civil court system: actions (“also known as "trials“) and applications (also known as "motion proceedings“). Each form of proceeding follows its own rules and has a different application in civil law. This post will take a look at applications.

An application usually makes it way to a judge relatively quickly. Applications are used where there is no material factual dispute between the parties and the only real issues to be decided are points of law. An example of a case where an application is appropriate is where a landlord cuts off the tenant's electricity and the tenant brings an application to court to have the electricity restored. In such a case there is no dispute that the landlord cut off the electricity supply. The main issue is whether the landlord was entitled, in law, to do so.

An application is launched by an applicant against one or more respondents. The applicant will sign an affidavit before a commissioner of oaths (usually) setting out the facts in support of the applicant's desired relief. This affidavit is called a "founding affidavit“ as it forms the foundation of the application. The founding affidavit is annexed to a document called a "notice of motion“ which sets out the details of the parties; the court; the time and date when the application is intended to be heard; the relief the applicant seeks (using the above example, the tenant, as applicant, may seek to have its electricity supply restored as well as payment of its legal costs); the name of the person who deposed to the founding affidavit and the details of the applicant's attorneys.

Once the application has been issued by the court, it is forwarded to the appropriate messenger of the court (also known as the sheriff) who is tasked with the responsibility of serving the application on the respondent/s. Once the application has been served, the respondent has a period of time to deliver a notice called a "notice of intention to oppose“ to the applicant. This notice tells the applicant that the respondent is opposing the application and sets out the respondent's attorneys' details. This notice is usually delivered to the applicant's attorneys' offices by a representative of the respondent's attorneys and then a copy is placed in the court file, or "filed“. The time period to deliver this notice is ten court days in the High Court (these time periods are different in the Magistrates Court).

The respondent then has an opportunity to deliver an affidavit to answer the founding affidavit. This affidavit is called an "answering affidavit“ and it must be delivered within a prescribed time period; usually ten court days in the Magistrates Court and fifteen court days in the High Court. The answering affidavit sets out the respondent's version of the facts. Although the facts may differ in the affidavits, provided there is no material factual dispute, the matter may proceed on application.

If the respondent does not deliver an answering affidavit then the applicant may have the application set down for hearing before a Magistrate or judge. If the respondent delivers its answering affidavit late, it may well have to apply for condonation for the late filing of the answering affidavit or risk having the answering affidavit disregarded. This could be disastrous as the judge would only look at the applicant's affidavit and may not have a complete picture.

Once the answering affidavit has been served on the applicant's attorneys and filed at court, the applicant may file an affidavit in reply to the allegations in the answering affidavit. This affidavit is predictably called a "replying affidavit“. In the High Court the applicant has ten court days to file its replying affidavit if it wishes to do so. The replying affidavit should not deviate from the framework created by the founding affidavit and should the applicant introduce further facts not set out in the founding affidavit, the respondent may file a fourth affidavit. This is uncommon though.

Once the various affidavits have been exchanged, the matter may be set down for hearing before a judge or Magistrate. The hearing dates vary from court to court and could take a week or two after the last affidavit is filed or months afterwards, before the matter is heard.

At the hearing of the matter the court will listen to legal argument from each party's lawyers and will hand down a judgment.

To add to all of the above, there are three types of applications: unopposed, urgent and opposed applications. The time periods and even some of the steps in the application process vary depending on which type of application you are involved in.

Legal costs in the South African legal system

Posted Tue, 27/12/2005 - 20:43 by Paul

This is the second part of our introduction to our civil court system. These articles are intended to introduce you to some of the concepts you will encounter in our civil court system. These principles are not applicable in every case and we urge you to discuss them with your attorney in the context of your specific case.

One of the more significant consequences of approaching a Magistrates Court as opposed to a High Court is your legal costs. Both courts apply a tariff of court fees with different scales. Perhaps the easiest way to understand these tariffs is in relation to medical aid rates. If you belong to a medical aid you will know that when you visit a doctor your medical aid will pay only a portion of the doctor's actual fee (unless you have a doctor who charges medical aid rates). You then have to foot the bill for the balance. Our court tariffs work in a similar way. If you are awarded legal costs in a court case (costs usually follow the result so if you win, you are awarded legal costs), your costs have to be "taxed" before you can recover from your opponent. This means that an officer of the court called a "taxing master" will compare your actual legal costs to tariff and either allow or disallow certain amounts that you wish to recover. Your costs will be set out in a document called a "bill of costs".

As an example, the tariff in the High Court sets a rate of R125 per quarter hour for an attorney to attend a consultation. This works out to R500 per hour. You will often find that your attorney charges you more than R500 per hour for his/her attendances and the difference between the tariff rate of R500 per hour and what your attorney charges you is called the "attorney-client" differential. This differential is analogous to the difference between medical aid rates and private rates your doctor may charge you. You can only recover the amount the taxing master allows you to recover based on the tariff. This figure is known as your "taxed costs".

It does get a little more complicated as there are different scales of legal costs. The figures mentioned above form part of the "party and party" scale (the most common scale). Other scales allow you to recover more of your costs and include "attorney and client" costs (you may have seen references to this scale of costs on credit agreements you may have signed) but these scales have to either have been specifically agreed to by the parties or specially ordered by the court.

The tariff in the Magistrates Court is lower than in the High Court so if your attorney is charging you the same hourly rate for work in the Magistrates Court as he/she charges in the High Court, you are actually entitled to recover less of your actual costs in the Magistrates Court, relatively speaking.

An introduction to our courts and court procedure

Posted Tue, 27/12/2005 - 20:33 by Paul

While most people have a vague idea about our court structure, I suspect not many people know enough to make informed decisions about the forum they litigate in and more or less what to expect. This tends to unnecessarily mystify the litigation process and scare people away from our court system. I'd like to shed some light on our civil court system and give you, my visitors, a basic knowledge of our civil procedure over the course of a few articles on this website.

I must just caution you that these articles are intended to give you a basic idea what to expect from our civil court system. It is mostly theoretical and practical experience of our court system may be fairly different. Although our court system is governed largely by rules, the system is fairly fluid and flexible. It has to be, for many reasons. That fluidity and flexibility can give rise to quite a bit of frustration when used to thwart a litigant but this is really just the way the system works.

The starting point is really a basic introduction to our civil court structure. When I refer to our "civil" court structure I am referring to the court structure that we use in private or civil litigation. For the most part this type of litigation involves disputes over contracts or instances where one party causes the other to suffer some form of loss (usually financial). These disputes are usually between two private parties (as opposed to criminal matters where the State prosecutes a private party).

There are two main court structures in South Africa. There are the so-called "lower" courts and there are "superior" courts. The lower courts generally comprise Magistrates Courts which are presided over by judicial officers called Magistrates (there are also courts called Small Claims Courts which I will deal with in a separate article). The superior courts comprise the various divisions of the High Court, the Supreme Court of Appeal and the Constitutional Court. Superior courts are presided over by judges. Our court structures and the composition of those courts is largely set out in Chapter 8 of the Constitution of the Republic of South Africa, 1996.

The two courts you would usually institute proceedings in would, save for certain special types of cases, usually be either the Magistrates Court or the High Court. The considerations which generally determine which court you approach first are detailed in the Magistrates Court Act and the Magistrates Court Rules of Court (a set of rules that govern the court proceedings in the Magistrates Court). Generally speaking, you can launch the following proceedings in a Magistrates Court (this is not intended to be an all-inclusive list and may not be applicable in certain instances):

  • actions in which you would claim delivery or transfer of either movable or immovable (for example, land) property;
  • actions to eject the occupier of a premises;
  • actions to determine a right of way;
  • actions arising out of a "liquid document" (where the amount claimed appears clearly from the document itself) or mortgage bond;
  • actions arising out of a credit agreement;
  • applications for the liquidation of a close corporation; and
  • general actions claiming compensation.

Except for where there are certain consents to the contrary, proceedings in the Magistrates Court are limited to matters where the value of the proceedings is less than R100 000.

As a litigant, you are always free to approach a High Court directly. Judges discourage litigants skipping Magistrates Courts by only allowing costs on the Magistrates Court scale (more on that later) as this could flood the High Courts. While the Magistrates Court is a "creature of statute" and its processes are governed by the Magistrates Court Act and its Rules of Court (not to mention other legislation), the High Court has what we call "inherent" jurisdiction to hear whatever matter it wishes to hear barring those matters which it is not permitted to entertain (certain types of constitutional matters are reserved for the Constitutional Court). You can launch virtually any form of proceeding in the High Court and the judge (or judges) have the ability to at least consider whether to hear the matter).

Magistrates Court and High Court are also referred to as courts of first instance because you can launch completely new proceedings in these courts. This is in contrast to the Supreme Court of Appeal and the Constitutional Court which are mostly courts of appeal. These two courts of appeal mostly hear appeals from the High Court where a judgment has already been handed down in a matter. As an aside, there are instances where the Constitutional Court can be approached directly but these instances are few.

Supreme Court of Appeal

Posted Wed, 21/12/2005 - 13:37 by Paul

We have a number of different courts in our court structure. The highest court in South Africa for all matters except for constitutional matters is the Supreme Court of Appeal. Here is some information about this court from its website:

All constitutional matters are dealt with by the Constitutional Court, the highest court in the land, which is situated in Johannesburg.

The Supreme Court of Appeal of South Africa, the successor of the Appellate Division of the Supreme Courts of South Africa was created by the Constitution of 1996. According to the Constitution -

  • it functions only as a court of appeal
  • it may decide any matter on appeal and,
  • it is except for constitutional matters, the highest court of appeal

It is composed of the President and Deputy President of the Supreme Court of Appeal and a number of judges of appeal determined by an Act of Parliament. The Supreme Court of Appeal has jurisdiction to hear and determine an appeal against any decision of a High Court.

Decisions of the Supreme Court of Appeal are binding on all courts of a lower order, and the decisions of the High Courts are binding on Magistrates' Courts within the respective areas of jurisdiction of the divisions.

Whereas previously the head of the Appellate Division was the chief justice, this is no longer the case. The Chief Justice of South Africa is now located in the Constitutional Court.

The seat of the Supreme Court of Appeal is at Bloemfontein. Provision exists for a session of the court at some other place when by reason of exceptional circumstances it is expedient to hold its sitting there. Its process runs throughout the Republic and its judgments and orders have effect and are executed in the areas of other divisions as if they were original judgments or orders of these divisions.

The Court sits in panels of five or three Judges, depending on the nature of the appeal. The composition of the panels differ for each case. The senior judge on each panel presides in that case and decides which judge is to write the judgment (or opinion) of the court. There may be more than one judgment in each case if there is a difference of opinion. The decision of the majority is the decision of the Court. Judges and counsel are robed in court.

If you are interested in some of the other courts in our court system, here are some informative links: