A Guide to Suing

“Suing” is a catch-all phrase meaning to institute legal proceedings against a person or institution. You can sue either by way of an Action Procedure or Application Procedure.

 

 

 

Differences between the two types of procedures:

ACTION PROCEDURE

APPLICATION PROCEDURE

Parties to the matter are referred to as “Plaintiff” and “Defendant.”

Parties to the matter are referred to as “Applicant” and “Respondent”

An Action Procedure is based on a material factual dispute of such a nature that it cannot be dealt with on paper.

An Application Procedure is based on a factual dispute of such a nature that it may be easily dealt with on paper by way of affidavits.

Commences with the issuing of a Summons by the Plaintiff.

Commences with the issuing of a Notice of Motion and founding affidavit by the Applicant.

Further pleadings are exchanged by the parties.

Further affidavits are exchanged by the parties.

After the exchange of pleadings a stage called “preparation for trial” follows. This involves the discovery of documents, expert notices, medical examinations, pre-trial conferences and so on.

There is no written “preparation for trial” stage.

The Action Procedure ends in the Trial Court, where mainly oral evidence is presented.

The Application Procedure ends in the Motion Court. In principle, no oral evidence is presented. The matter is argued by legal representatives on the papers before the court.

Action Procedures

I am going to focus on Action Procedures as it is the more complicated of the two.

As mentioned in the Table above, the Action Procedure is commenced by the issuing of a Summons by the Plaintiff. To issue a Summons means that the Registrar of the Court checks the Summons which is drafted by your Attorney; the Registrar opens a file for the matter, issues a case number, signs the Summons and stamps it.

The Summons is addressed to the Sheriff and directs the Sheriff to serve the Summons upon the Defendant and inform the Defendant of the nature of the Plaintiff’s claim and the procedural steps and time limits the Defendant must follow in order to dispute the claim.

Annexed to the Summons is the Plaintiff’s Particulars of Claim, which sets out the Plaintiff’s cause of action, locus standi and their prayer for relief claimed.

The Defendant then has 10 Court Days to serve upon the Plaintiff and file at Court a Notice of Intention to Defend.

Pleadings

Then the following pleadings need to be served and filed at court, each has their own specified time frames to do so in:

  • Plea, served on the Plaintiff by the Defendant
  • A Counterclaim, served on the Plaintiff by the Defendant
  • A Replication, this is the Plaintiff’s reply to the Defendant’s Plea, served on the Defendant by the Plaintiff
    • It is also possible, but very rarely done, to serve a number of pleadings known as: rejoinder, surrejoinder, rebutter, surrebutter

Further pleadings can be served and filed, if necessary to accurately and sufficiently put the facts before court.

The defendant can choose to defend themselves, even though it is not highly recommended, it is completely within their Rights to do so. All services of pleadings must be upon the Defendant personally at either their place of work or residence. The time frame to respond must be clearly explained to the Defendant. If the Defendant has an Attorney, they must furnish the Plaintiff with the Attorney’s name and address for services; this is known as placing the Attorney on record.

The time periods are calculated using Court Days. Court Days are different from Business Days or Calendar Days and are calculated as follows by excluding the first day, Saturdays, Sundays and Public Holidays. For example if you receive a pleading on a Monday, you begin counting your days to respond from the Tuesday. Each particular pleading has its own time limit for the response.

Trial Phase

After all the necessary pleadings have been served and filed at court the matter enters the preparation for trial phase. This includes:

  • The discovery of documents
  • The disclosure of expert witnesses and medical reports
  • The examination of objects, plans, diagrams, models or photographs
  • The further particulars for purpose of trial
  • The witness subpoena
  • The pre-trial conference

Once all of this is done, the matter may be enrolled and set down for trial. This is when you obtain a trial date from the Registrar of the Court. Once the date is obtained a written Notice of Set Down, which informs the defendant of the trial date, must be served on the Defendant and filed at Court.

Affidavits

At trial evidence of witnesses may be presented orally, by way of affidavit, through interrogatories or on commission. Affidavits are most commonly used and then the witness will testify to the truthfulness of the affidavit.

Affidavits are written sworn statements of facts given truthfully, freely and voluntarily by a witness or party and taken under oath or affirmation by a Commissioner of Oaths. All affidavits must be commissioned by a Commissioner of Oaths. An Affidavit should also contain the particulars of the person giving the statement. Such as their full name, ID number, where they live or work.

How long this process takes depends on the nature of the matter, how many pleadings are served, etc. The more complicated a matter is, the longer it can take to resolve. But also the trial date you receive is often a few months away. In the case of Road Accident Fund claims the delay for a trial date is sometimes between 6 months and a year.

Sheriff

A question that many people have is; what the role of the Sheriff is?

The Sheriff is an officer of the Court. Sheriffs are appointed for a certain geographical jurisdiction, for example there is a different Sheriff for Pretoria East and Pretoria West.

Sheriffs are responsible for the service or execution of all documents issued by the Court. These include:

  • Summons
  • Notices
    • Such as a Notice of Motion for an Application Procedure
  • Warrants and Writs
  • Court Orders

Sheriffs do have a tariff which is charged for the execution of their duties. For the tariffs as of February 2015 please click here.

Other Costs

Speaking of tariffs, let us take a moment to identify where costs are accumulated during the resolution of your matter.
  • Consultation- Attorneys charge an hourly fee for consultations.
  • Drafting- Drafting takes a lot of time to do correctly. Attorneys either charge per time spent drafting or by document drafted.
  • Correspondence- This includes all phone calls made and received; emails, faxes, letters sent regarding your matter.
  • Travel Costs- A charge is levied for travel costs for the service and filing of pleadings, any consultations or pre-trial conferences out of office, or going to the court for your matter.
  • Sheriff Fees
  • Advocates- Advocates are not used in every matter. But when brought in they also charge for consultations, drafting, court appearances, and travel costs.

Correspondent Attorneys are also a sneaky little cost that can pop-up. A correspondent attorney is often used if your Attorney is based in a different city or jurisdictional area to the one the matter falls under. This is done because a law firm must be within a 15km radius of the Office of the Registrar of the Court.

For example, if a Pretoria based law firm has a matter in the Johannesburg High Court, they will use a Johannesburg based law firm as a correspondent firm, for the service of pleadings and notices.

Correspondent attorneys get paid according to the agreement they have with your Attorney. There are tariff’s set out by the Rules Board for Courts, but your Attorney and the correspondent attorney can agree to higher or lower levies. For the tariffs as set out by the Rules Board for Courts please click here.

Jurisdiction

Jurisdiction refers to the authority or the competence of a particular court to hear a matter which has been brought before it and to grant relief in respect of that matter.

There is Jurisdiction in terms of the value of the relief sort;

  • Below R12 000 should be in the Small Claims’ Court,
  • Below R200 000 should be in the District Magistrates’ Court,
  • More than R200 000 but less than R400 000 should be in the Regional Magistrates’ Court,
  • More than R400 000 should be in the High Court.

Jurisdiction is also determined in terms of the nature of the claim. Certain matters due to their nature are in the sole Jurisdiction of a particular Court or are prohibited from certain Courts by Law.

Jurisdiction is also determined by the geographical area. Whether or not a Court has Jurisdiction in terms of geographical area is determined by the link between the claim and the geographical location of the court. The link can be established by common law principles. But the basic idea is that the Court has to be able to give effect to its judgement, so in terms of actor sequiter forum rei, the plaintiff follows the defendant. Meaning that the claim must be instituted in the Court with the geographical Jurisdiction over the area where the Defendant is resident or domiciled; or in the area where the claim arose.

Sources:

Legal Practice Act 28 of 2014;

South Africa (2015) Rules Board for Courts of Law Act, 1985(Act No. 107 of 1985): Amendment of the Rules Regulating the Conduct of Proceedings of the Several Provincial & Local Divisions of the High Court of South Africa (Proclamation No. R. 30, 2015) Government Gazette No.38399, 23 January 2015 (Regulation Gazette No. 10349).

Law Society of South Africa; www.lssra.co.za

Theophilopoulos, C; et al; Fundamental Principles of Civil Procedure Second Edition (2012)

Bracher, P; Claims of a Higher Value to be heard in the Magistrate’s Court (April 2014) Accessed at: http://www.financialinstitutionslegalsnapshot.com/2014/04/claims-of-higher-value-to-be-heard-in-magistrates-courts/ (Accessed On: 10/11/2015)