Blogs to play a role in court proceedings?

According to Jim Downing of Smart Mobs, South Korean courts are considering whether the use of Web technology, like blogs, could be integrated into their processes to obviate the need for parties to appear in court:

Weblogs, or Internet diaries, are about to gain more than just curious readers. Korean courts are now experimenting whether they could operate court trials and hearings just through Internet postings, saving everybody the trouble of actually entering the courtroom,” the Korea Times reports.” The Seoul Administration Court recently designated one of its court units, which rules on labor-management relations and industrial accidents, to develop a prototype model for Internet-based trial models by the end of this month. Although the court has not yet decided on a detailed framework, it plans to allow the parties in lawsuits to submit their list of evidence,legal documents and other data on Weblogs or Internet message boards to be operated by the court. The court decisions will also be announced online. The court also plans to allow people to buy court documents and other requirements in preparing for their lawsuits through the Internet by credit card or mobile-phone payments. Korea has one of the largest Internet populations in the world, with the penetration rate reaching over 70 percent.

Now that is an interesting application of Web technology. I suppose this sort of technology could be used for court proceedings where all that is needed are filings like our application proceedings. In those proceedings the parties must file their papers and need only appear in court to address argument to the court. If there was a way to dispose of the need for oral argument through interrogatories or heads of argument then this method may work.

(via Between Lawyers)

Trial actions: forms of court proceedings

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.

Legal costs in the South African legal system

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

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

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: