5 things everyone should know prior to engaging in litigation in South Africa

Advocate Muhammad Abduroaf - Western Cape High Court

Are you intending on taking someone to court? Have you been sued? Do you require some basic advice on litigation from an experienced advocate? If you answered yes once, this article is for you.

Picture outside the Western Cape High Court in Cape Town

Advocate Muhammad Abduroaf
Advocate Muhammad Abduroaf outside the Western Cape High Court

We asked Advocate Muhammad Abduroaf to provide our readers with some simple and basic information on how to conduct themselves in court litigation. He holds a decade and a half of litigation experience. Who better to ask than him? Learn more about Advocate Muhammad Abduroaf by reading the article, ADVOCATE OF THE HIGH COURT OF SOUTH AFRICA.

Advocate Muhammad Abduroaf:

I appeared in court countless amount of times for clients I represented. Furthermore, I drafted thousands of legal documents for them. This I did for litigants as they obviously do not have the necessary skills and experience to do it themselves. Often when a client meets with me, he or she will say this is the first time they have been introduced or embroiled in a legal matter. They are initially a bit anxious and do not know what to expect. Luckily for them, they are legally represented.

Litigants are advised on what to expect as their case unfolds. They are informed of the processes that need to be followed and what they have to do in order to provide evidence to the court. As you would see later, this could either be in the form of an affidavit, or orally in Court.

Notwithstanding the above, it is always useful to follow some basic guidelines when dealing with a court matter. This is what this article intends to demonstrate. It would be especially useful for someone who is representing themselves in court. In other words, acting in person. Although we advise you to make use of legal representation (advocate or attorney) when engaging in litigation, this article is for those who wish to handle their case on their own.

Who are the parties in a court case?

In civil legal matters, there are usually two opposite sides. Often there will be a Plaintiff and a Defendant. This is called action proceedings. In other cases, you will find an Applicant and a Respondent. This is called Application proceedings. The difference is explained next.

Action Proceedings: Commences with a Summons and Particulars of Claim

Western Cape High Court - Cape Town

In action proceedings, there is a Plaintiff and a Defendant. Ultimately the parties will appear in Court to give evidence. In other words, they will step into the witness box and give evidence and answer questions about the specific case. The witness will be examined by his or her attorney or advocate. This is called examination in chief.

Then he or she would be examined by the lawyer for the other side. This is called cross-examination. Then there is re-examination. The Plaintiff is the one who institutes the action or starts the case against the Defendant. And of course, the Defendant is the one who is taken to court by the Plaintiff.

Application Proceedings: Commences with a Notice of Motion and Founding Affidavit

In Application Proceedings, the parties to the dispute do not give evidence in the witness box. They provide their evidence in the form of a sworn statement or affidavit. It would start with a Notice of Motion. Basically, in the Notice of Motion, you will state exactly what you want from the court. The Applicant would then outline his or her case in the Founding Affidavit, and the Respondent would do so in his or her answering or opposing affidavit. The Applicant would then get a chance to reply to the opposing affidavit if he or she so wishes.

The dispute is therefore resolved on affidavits. There is, therefore, no examination of witnesses. The Applicant is the one who starts the legal process and the Respondent is the other party.

This article does not go into detail as to when Application proceedings or action proceedings are appropriate. However, if there is a serious dispute of fact at the outset, then action proceedings would be warranted. Now that we have identified who the parties are, let us provide you with some insight as to what the parties should observe when litigating.

Point 1: Do you have a case?

Whether or not you are instituting legal proceedings or defending it, it is always important to first determine whether or not you have a case. This might sound obvious, but many people litigate solely on emotion and not on fact. This point applies to whether you are instituting proceedings or whether you are defending it.

If you are instituting proceedings and you do not have a case, you would not only be wasting your time and money, you would also have to pay the other side’s legal bill if so ordered. The same principle applies when opposing a case.

Point 2: Try to settle the court case early

Even if you have a strong case, it is always wise to attempt to settle it earlier than later. This is before an enormous amount of time and money is used. Many times, sitting face to face with the opposing party can resolve a dispute which could have cost the parties dearly. If sitting face to face is not possible, then try to send a written settlement proposal. This would give the other side something to work with. If they send a counter settlement proposal you are happy with, then take it and move on with your life.

Point 3: Obtain professional legal advice

This point could have been mentioned earlier, however, it applies to every step of the case. Although you are handling your own case, it is important that at each step of the way, you are legally informed. What better advantage will you have if you receive advice from someone who has years of legal experience in the field of law you are dealing with? As your case unfolds or evolves, having an experienced person advise you on your next move would be invaluable. This can save you a lot of time and money in the long run.

Point4: Stick to timelines and court rules

The court has rules and timelines. Therefore, know them and follow them pedantically. The last thing you want is for default judgment to be granted against you. Even worse, have your matter struck from the Court roll and pay the other party’s legal costs. The court rules are there for a reason. Other than timelines, ensure that your court file is in order, indexed and paginated and presentable for the court. This applies to both action and application proceedings.

Point 5: Simplify your case

The adjudicator of your matter is a judge. Although he or she is very learned and wise, he or she does not know the ins and out of your business or issue. It is therefore important that you follow basic principles of simplicity and logic when presenting a case. This could either be when drafting your particulars of claim, or your Notice of Motion. When presenting your case in action proceedings, ask a simple and concise question which would help the court to follow where you are going to. Ask one question at a time. Often lawyers ask two or three questions in a single “question”. For example, the lawyer would ask a witness, “what time did you meet the defendant, and what colour was his jacket and did he sound angry?”.

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