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Legal Talk

Legal Talk

Date: 2019-12-20

Unpacking Some Aspects Of Litigation

Prior to taking the matter to litigation, it's always worth considering other ADR (alternate dispute resolutions) options, such as mediation, arbitration or negotiation. The benefits of mediation are that it always will be significantly less costly, will allow for a win-win result and can deliver a result in a far more expeditious manner.

However, there may well be justification to pursue a matter through the normal court processes. Litigation processes require strict compliance with the rules. I briefly describe some basics, which a litigant should be aware of when deciding to institute a summons or defend a claim.

Firstly, even before you can issue summons you need to make sure you approach the correct court. If not, you could end up having to pay the defendant's wasted costs for the error. To work out which court will have jurisdiction you need to approach an attorney who will guide you which is the correct court will have jurisdiction.

If the whole cause of the action occurred in a particular area, then the court in that area would have jurisdiction. In other instances, you will need to sue out of the court in the area in which the defendant resides or is domiciled in. Also, different courts have different monetary limits.

Claims up to R200 000,00 are heard in the District Court, whilst the Regional Court has jurisdiction to hear claims up to R400 000,00. Any claim in excess of R400 000 must be heard in the High Court. In certain cases, parties can consent in writing to a lower court having jurisdiction to hear the matter even though the claim is in excess of that's court's limit.

A summons is the document used to institute an action in court. It sets out what the plaintiff's cause of action and claim is as well as what relief the plaintiff seeks from the defendant. Once the summons has been issued by the court, it has to be served on the defendant.

The sheriff of the court is the only person authorised to serve the summons. The defendant must deliver an Appearance to Defend on the Plaintiff and within 20 days must serve his/her Plea, which sets out the basis and reasons why he is defending the claim. No appearance to defend means the plaintiff can apply for default judgment.

Once judgement is granted, the plaintiff can proceed to attach the assets of the debtor through a document called a writ of execution. If a defendant was not made aware of the summons and default judgement was granted, he may apply to court to rescind the judgement. If a defendant defends an action and the plaintiff believes that this is merely a dilatory tactic by the defendant, he can apply for summary judgement.

This application is only available if the claim is based on a liquid document or a liquidated amount of money, the delivery of specified movable property, or ejectment from property. Once the pleadings have closed, pre-trial processes must be complied with.

Each party must serve a discovery affidavit, detailing all the documents that exist and are relevant to the proceedings. The parties are also required to hold a pre-trial conference and explore settlement options. At the trial both parties will lead evidence and the court will make its finding. The party who is successful usually is awarded the costs.

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.