The Litigation process in terms of Civil Disputes and Trial Proceedings

What is Litigation?

A dispute is a disagreement between two or more people. For example, this disagreement can relate to maintenance after a divorce, the divorce itself or your neighbour disturbing the use and enjoyment of your property.

Civil Litigation

As an example, we will look at Sam who has had to pay veterinary bills after his neighbour’s dog attacked his Golden Retriever.

The litigation process has many rules and time periods that have to be complied with. One of the terms that potential clients could hear is ‘prescription’.

A claim has prescribed when the claim was not brought within the required time. Essentially the claim falls away. The prescription period in South Africa is usually three years.

Should Sam wait four years before trying to claim the money back from his neighbour, the neighbour will be able to use prescription to have the claim thrown out.

Litigation Process

The process that Sam and his claim will go through will be as follows:

1.    Sam approaches Randles Incorporated (shortly after the incident took place) to set up a consultation as he would like to claim the money back from his neighbour.

When he arrived for his consultation he brought with him the veterinary bill, the bills for the subsequent prescribed medication, communication between himself and the neighbour and the photos of his injured dog before and after the vet saw her.

2.    After considering all the relevant facts of the case, Sam was informed that he is entitled to claim the money back from his neighbour.

A letter of demand was then sent to his neighbour demanding payment of the money owed or legal action would be taken against him.

3.    Sam and Randles Inc. did not receive payment from the neighbour; as a result, they decided to institute legal proceedings against the neighbour.

In order to do this a summons must be issued, together with the particulars of the claim. This means that the claim is allocated a case number by the court and a file is then opened at the court.

The particulars of claim include all the relevant information relating to the incident and the expenses incurred. The documents that support this claim (the veterinary bill, the bills for the subsequent prescribed medication, communication between himself and the neighbour and the photos of his injured dog before and after the vet saw her are attached to this). [As Sam is the one instituting the action he will be called the Plaintiff]

4.    The summons, with the particulars of claim and attached documents, are then served on the defendant  (Sam’s neighbour) by the Sheriff of the Court.

5.    Sam’s neighbour then has the choice of paying the money owed or submitting a notice of intention to defend.

6.    Sam’s neighbour has to then submit a plea and a counter claim. A plea is a response to the particulars of claim. His lawyer will go through each point in the particulars of claim and see what they disagree with or admit to.

A counter claim would be used if the opposing party wants to claim something from Sam. This would happen if Sam’s neighbour said that his dog was also injured or Sam was walking his dog off the lead and should therefore be liable for some of the damages.

7.    Sam can also ask the veterinarian who treated his dog to draft an affidavit explaining the extent of the injuries that he treated.

8.    Once this is done the matter will be set down. This means that the court date will be set for the parties to appear in court.

9.    After all this the parties will exchange documents relating to the case. This is called discovery.

Court Appearance

What to expect on the day you are set to appear in court:

1.    Both parties’ attorneys will address the court with an opening statement.

This is an explanation of the facts and brief points that will be touched on by each party.

2.    After this the Plaintiff’s attorney will call up witnesses to testify. These could be people who saw the incident, the veterinarian, etc.

The Plaintiff’s attorney could also call Sam to the stand to testify.

3.    After each of the witnesses are sworn in they will go through an examination in chief, the cross examination (by the opposing attorney) and then the re-examination.

4.    Once the Plaintiff’s attorney has presented all of their witnesses the defendant’s attorney will call their witnesses and go through the same process.

5.    When the presiding officer (judge or magistrate) is satisfied with the evidence presented the attorneys will make their closing statements in which they summarise their case and highlight the evidence presented in their favour.

6.    The presiding officer then deliberates and makes a decision. This can be done several months after the court date.

As this is a rather simplified overview of the trial procedure, it should be kept in mind that each case is different and has its own particular needs, as does each client.

Clearly the trial procedure is not a quick fix to the problem at hand. It can be quite a lengthy, drawn out process.

There are alternatives to the court process such as mediation and arbitration. This is also known as Alternative Dispute Resolution or ADR.

Some parties settle the dispute before the court date arrives. This settlement is then negotiated by the attorneys to ensure that both parties’ interests are looked after.

By Narisha Rahim-Harry

Candidate Attorney

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