Paul Jacobson

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.

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.

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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.

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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.

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I was flip floppin’ around the blogosphere earlier and I stumbled across a post by Martin over at d2.co.za (one of my fav bloggers) about a new South African blogger, Mark Forrester.  I love Mark’s design.  Very clean and striking.  I have only read a couple of his posts and I have enjoyed them all.  Mark says:

I’m inspired by people who think big, people who think out of the box, and people who never let an obstacle get in their way. I believe the glass is half full. 

I enjoy a social beer with friends, a walk on the beach or a surf in the sea, rugby and biltong, fast cars and new technologies. So i guess I am your typical male specimen. But read my blog and find out why i am different and what makes me tick …

Thanks Mark, I think I’ll do that.

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Shell has a new service called Shell Geostar (new to me at least).  It integrates a route planner across South Africa with a complete map than can be broken down into smaller maps for each part of the route.  It is styled as an “online car journey planner”:

Here to help you find all the information you need when planning a trip, as well as what to do when you get there! Try clicking on the Route Planner button for directions on where you may be going.

It most certainly does that.  There are links that show you where to eat, where to stay and what to do when you get there in addition to the map service.  Very handy!

(via Mark’s Digital Farm)

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