IURI 376 Notes SU 10-13 Intellectual Property of Law PDF

IURI 376 Intellectual Property of LawGuide  SU 10: Definitions ito: in terms of Cases...

IURI 376 Intellectual Property of LawGuide  SU 10: Definitions ito: in terms of Cases P: Plaintiff NB – important D: Defendant Textbox – study outcomes/ HC: High Court Extras MC: Magistrate’s Court Examples As this is a multiple-choice test, read through the textbook first to check the precise word usage Shortcut judgments: It is possible to obtain judgment before a ma er goes to trial in the following situa ons: 1. Default judgment: P may apply for default judgment against the D if the D fails to either enter an appearance to defend/ to plead, after being warned that he may be barred if he fails to do so. Default judgments may also be taken against a party who fails to appear at trial. 2. Summary judgment: if a P has a particularly clear-cut claim (specified in the rules), he may apply for summary judgment if it is clear that the D has no bona fide defence and is simply entering an appearance to defend to delay the matter. 3. Confession of claim/ Consent to judgment: judgment may be taken against a D who has consented to judgment being taken against him. 1. Default judgment: o Default: when a party fails to perform some necessary procedural action. o Two main forms of default that may result in judgment: a) Default of appearance: failure of a D to enter an appearance to defend/ failure of either party to appear at trial. b) Default of pleadings: one of the parties fails to deliver pleadings within the required time periods. o The procedures are broadly similar in the HC and MC. a) Default of appearance: i) Defendant’s default of appearance to defend: o Most common form of default: D’s failure to enter an appearance to defend – ignore summons hoping for the matter to ‘go away’. o HC Rule 31(2)(a) and 31(5)(a) and MC Rule 12(1)(a): default judgment may be granted against a D if he fails to deliver a no ce of inten on to defend within the time set out in the summons (dies induciae). o Default judgment is granted by the registrars of the High and Regional Courts/ clerk of the MC, but in some cases requires a judge/ magistrate to give judgment – depends on the type of claim for which the P is suing. o Registrar/ clerk is authorised to grant default judgment in the case of a ‘debt/ liquidated demand’, a judge/ magistrate deals with the other kinds of claims including unliquidated/ illiquid claims. o Debt: liquid claim for an amount of money where the amount is clear/ readily ascertainable. Ex: suing over on an agreement for ‘goods sold & delivered’. o Unliquidated claim: when the amount of a money-based claim has not yet been determined by agreement (alleged/ proven) or a court judgment. Ex: claim for damages. Intellectual Property of LawGuide  o Such claim becomes ‘liquidated’ after agreement/ a court’s judgment and, therefore a ‘liquidated amount’. o An illiquid claim cannot be made liquid – it does not relate to money. Ex: claim for specific performance. ii) Plain ff’s default of appearance at trial (comparuit default) o HC Rule 39(3) and MC Rule 32(1): apply to failure on the part of the P to appear at trial. o MC Rule 32(1): if the P fails to appear at the trial, the court may dismiss the action with costs – ‘may’ = discretion. o The words ‘P’ and ‘D’ include the attorneys of the respective parties. The parties will not be held to be in default, provided that their attorneys are present in court. o ‘Dismissal’: absolution from the instance, rather than a final judgment – cannot be pleaded as res judicata. o HC Rule 39(3): makes provision for the termination of the P’s claim in the circumstances above. It specifically refers to absolution from the instance – similar to MC. It contains an added proviso that the D may lead evidence with a view to satisfying the court that final judgment should be granted in his favour and the court, if so satisfied, may grant such judgment. o The court will not grant final judgment lightly – there must be special circumstances. Ex: deliberate default on the part of the P. iii) Defendant’s default of appearance at trial: o MC Rule 32(2): P may apply for judgment with costs if the D fails to appear at trial. o To properly exercise discretion, the court may need to hear evidence. o HC Rule 39(1): if the D does not appear, the P may prove his claim so far as the burden of proof lies upon him and judgment will be given accordingly, insofar as he has discharged the burden. Where the claim is for a debt/liquidated demand no evidence is necessary. b) Default of pleadings: i) Default of plea: Default of plea – HC: o The D has given notice of his intention to defend, but failed to deliver his plea within the 20- day prescribed period in HC Rule 22(1). o The P then serves a no ce of bar on the D ito Rule 26, calling on him to deliver his plea within 5 days. If the D fails to do so, he is in default and is ipso facto barred from pleading. o The procedure is then almost the same as if the D were in default of appearance – P may apply for default judgment ito Rule 31(2)/(5). o One difference: notice of the application for default judgment must be served on the D ito Rule 31(4) and (5). Default of plea – MC: o MC Rule 12(1)(b): if a D enters an appearance to defend, but fails to deliver a plea within the prescribed time limit, the P may serve a notice of bar to call upon the D to deliver a plea within 5 days from the date of receipt of the notice – D will be in default of the plea and ipso facto (automatically) barred. o The P is entitled to apply to the clerk of the court for default judgment. Intellectual Property of LawGuide  o One difference from HC Rule 26: no further no ce need be given to the D ito the subsequent default judgment application. Default of plain ff’s plea in reconven on o HC: procedure in respect of the P’s failure to deliver his plea in reconven on to the D’s counterclaim on time is iden cal to the barring procedure used for the D’s pea in convention. o The barring procedure is provided for in HC Rule 26 – covers all pleadings. o Due to the introduction of Rule 21B the procedure is now identical to the MC procedure. ii) Default of declara on: o The P is in default of pleading and the D is in a position to apply for default judgment. o If the P’s claim is for a debt/ liquidated demand, he will issue a simple summons. o Once the D has given notice of intention to defend, the P must deliver a declara on within 15 days of receipt of the notice – HC Rule 20(1) and MC Rule 15(1). o If the P fails to do so, the D may serve a notice of bar (HC Rule 26), demanding the declaration be delivered within 5 days, if the P fails, he is automa cally barred. o With the P barred, the D may set the action down (HC Rule 31(3)) and apply for absolu on from the instance or, after adducing evidence, for judgment. o Exact same remedy contained in MC Rule 15(5) where the P has been barred ito Rule 21B(3). Applying for default judgment: Where either P/ D fails to appear at trial, application for default judgment is made orally from the bar. Preferably a request be drafted (Notice + Affidavit). Procedure in the HC: o P must ask himself whether/ not his claim is for a debt/ liquidated demand. o Debt/ liquidated demand: a claim for a fixed, certain/ ascertained amount/ thing Ex: claim for goods sold and delivered. o Unliquidated claim: Ex: damages arising out of a motor vehicle collision. o Where the claim is NOT for a debt/ liquidated demand, the court itself will have to hear the application for default judgment. o Where the claim is for a debt/ liquidated demand the application for default judgment may be considered administratively by the registrar. The application for default judgment is lodged with the registrar, who deals with it in chambers, without the P/ his legal representatives present – straightforward claim, saves time for the court. If the claim is NOT for a debt/ liquidated amount: o Unliquidated claim (damages)/ illiquid claim (order for specific performance). o The P must set the matter down for hearing by the court where the application will be moved formally by counsel. o Reason for the court needing to hear the application: P has to satisfy the court as to the quantum (amount) of his damages/ other issues in relation to specific performance/ divorce. o The court may, in its discretion, allow the P to lead evidence by affidavit to prove his cause of action in a damages claim. o Always heard in a mo on court because the application procedure is used to obtain default judgment. Intellectual Property of LawGuide  o If the D fails to enter a notice of intention to defend, NO notice of the application for default judgment needs to be given to the D – HC Rule 31(4). o If the D failed to plead and ignored a no ce of bar, notice of set down must be given to the D at least 5 court days before the hearing, because if the D has at least taken the trouble to enter a notice of intention to defend, then failed to do anything further, he is entitled to the benefit of the doubt and must be given notice of the application. o After hearing evidence, the court will grant judgment/ make an order which it considers fair. If the claim IS for a debt/ liquidated demand: o The P must file a wri en applica on for judgment against the D with the registrar. o The P is obliged to apply for judgment to the registrar where the claim IS for a debt/ liquidated demand and may not make an application to court. o If the D has failed to enter a notice of intention to defend, notice of the application to the registrar need not be given to the D. o If the D failed to plead and ignored a notice of bar, notice must be given at least 5 court days before the application is made – this is a notice of intention to apply for default judgment. o It is then dealt with by the registrar administratively. o The registrar may: - grant judgment as requested - grant judgment for part of the claim only/ on amended terms - refuse judgment wholly/ in part - postpone the application for judgment on such terms as he considers just - request/ receive oral/ written submissions - require that the matter be set down for hearing in open court. o The registrar will require the matter to be set down for court hearing if he is of the opinion that evidence is required as to the quantum/ merits of the claim, or if he has doubts about granting judgment. o If a party is dissatisfied with the judgment/ directions of the registrar, he may set the matter down for reconsideration by the court within 20 days after he has acquired knowledge of the judgment/ direction. The procedure in the MC: o If the D defaults in that he fails to enter an appearance to defend/ fails to plead after being called upon to do so in a notice of bar, the P may request default judgment against him – MC Rule 12. o The P lodges a wri en request for judgment by default with the clerk of the court – must conform to Form 5 of the MC Rules and must be signed in duplicate (2 original signed drafts). o The original summons and sheriff’s return of service should be attached to the application. o It is then dealt with administratively in chambers. Liquid claims: o Clerk of the court grants judgment himself ito MC Rule 12(1)(c). o The cause of ac on for the claim, which is set out in the request for default judgment, is disclosed in the par culars of claim. o Where default judgment has been applied for after the D’s failure to enter an appearance to defend, the judgment clerk will also check that there has been proper service of the summons on the D. Intellectual Property of LawGuide  o Only after all appears to be in order will he grant judgment and thereafter inform the P’s attorney by sending back the request endorsed with a stamp indicating that judgment has been granted, together with the date. o MC Rule 6A: if a claim is founded on any cause of action arising out of/ regulated by legislation, the P shall together with the request for default judgment, file evidence confirming compliance with the provisions of such legislation to the satisfaction of the court. Unliquidated amount: o MC Rule 12(4): the clerk of the court will not grant default judgment, the matter will be referred to the court, which will assess the amount recoverable by the P and give the appropriate judgment. o The matter is not heard in open court, the clerk places it before a magistrate who deals with the matter administratively in chambers without any party being present. o The court will require evidence (written/ oral) as to the nature and extent of the claim before it will grant default judgment. o Request for default judgment for an unliquidated amount is supported by an affidavit in which full details are given as to the manner in which the claim was quantified – damages affidavit. o Note: a claim for unjustified enrichment is a claim for an unliquidated amount. A damages claim may become liquidated by agreement. o The person who deposes to the damages affidavit must be the person who assessed the damages. If the deponent is an expert (panel beater) he must lay a basis for the averment that he is an expert (as if giving oral evidence). o In any request for judgment on a claim arising out of a credit agreement governed by the NCA/ Credit Agreements Act/ Consumer Protection Act, the request must also be referred to court in terms of MC Rule 12(5). Barring – HC Rule 26 & MC Rule 21B: NB: A procedure that prevents the delivery of any further pleadings in an action by placing them under bar. a) Automatic barring: o After the D serves his plea on the P, the P has 15 days to serve his replication to the plea – failing this he will be ipso facto (automatically) barred = pleadings are closed + matter may be set down for trial. b) Notice of bar: o There is no automatic barring in respect of pleadings that come before the replication, which are: P’s declaration, D’s plea and P’s plea in reconvention to any counterclaim. o If any of the pleadings are not delivered on time and a party wishes to obtain default judgment, he must serve a notice of bar on that party. o The notice of bar calls for the delivery of the declaration/ plea within 5 court days – failing this, the defaulting party is ipso facto barred from doing so and the other party may apply for default judgment against him. o Note: the days between 16 Dec and 15 Jan (both inclusive) are dies non (non-days) – will not be included in the time allowed for the delivery of any pleading – proviso to HC Rule 26. o In the MC the dies non limitation exists with regard to notice of intention to defend and delivery of any pleading ito MC Rule 21B(3). Intellectual Property of LawGuide Removal of bar – HC Rule 27: o In the HC the attorney must ask the other party if they will agree to the bar being removed. o If the other party refuses, the defaulting party may apply to court on notice ito HC Rule 27(1) for the bar to be removed – must show good cause to succeed. o HC has inherent jurisdiction to remove the bar. o Situations in which the court will tend to grant the application to lift the bar: - Applicant gave a reasonable explanation for his delay. - Application is bona fide and not made to delay the opposing party’s claim. - There has been no reckless/intentional disregard of the rules of court. - Applicant’s action/ defence is clearly not ill-founded. - Any prejudice caused to the opposing party can be compensated by a cost order. o In the MC the D may apply for an extension of time – Rule 60(5). 2. Summary Judgment: o The D opposes the matter, but there is a suspicion that the only reason for his opposition is to delay the matter, as he lacks a bona fide defence. o The rules provide a mechanism whereby the P may attempt to shortcut the usual procedures and obtain judgment without having to go to trial – it allows the court to grant a final order in a defended action without the parties going to trial. o Purpose: to prevent the D from delaying the proceedings when he has no real defence to the P’s claim. o Attempt to balance two conflicting interests: a) P should not be forced to suffer delay and expense of a trial in circumstances which amount to an abuse of the process of court. b) Summary judgment is a severe and extraordinary procedure, which circumvents the audi alteram partem principle – D who wishes to defend a matter may have judgment taken against him without the benefit of a trial. o It will only be granted where a court is satisfied that the P has a very clear case and the D fails to establish a bona fide defence. o HC Rule 32 and MC Rule 14 were amended in 2019 - altered the manner in which summary judgments operate: - Summary judgments can now be applied for after the P’s receipt of the plea – changed the contents of the affidavits that need to be exchanged. - The reason and impact of the change was explained in Tumileng Trading CC v Na onal Security and Fire: Western Cape High Court explained that the amendments to the summary judgment rules were introduced to address concerns about the constitutionality of the procedure. These amendments aim to balance the interests of both P’s and D’s. While no appeal court cases have addressed these changes yet, the court found that the D's interests are now adequately protected. Judge Binns-Ward’s judgment offers valuable guidance on the impact of these rule changes. Intellectual Property of LawGuide Permissible claims – HC Rule 32(1) & MC Rule 14(1): o Because it is a drastic remedy, only the clearest and most straightforward claims may be the subject of a summary judgment application. o A P may only apply for summary judgment together with any claim for interest and costs if his claim is either (all are liquid in nature): a) Based on a liquid document: - Ex: acknowledgements of debt/ mortgage bonds. b) For a liquidated amount in money: - A liquidated claim may arise out of an oral agreement – need not be evidenced by a document. - Debt/ liquidated demand: a claim for a fixed/ definite thing. - Ex: claim for the transfer of immovable property/ ejectment for the cancellation of a contract. c) For delivery of specified movable property: - One of two types of illiquid claims requiring an act as opposed to the payment of money – may be brought under application for summary judgment. - S 46 of the MC Act: these claims are exceptions that may be heard in the MC. - Summons must clearly describe the property to allow for its identification. d) For ejectment: - A claim requiring the removal of the D from premises unlawfully occupied. - Another one of the two illiquid claims which does not involve a demand for a liquidated amount in money, it may accompany a claim for money. If the accompanying claim is an unliquidated claim for damages summary judgment will not be granted. - Ex: claim brought by a landlord against a tenant for arrears in rent, accompanied by a claim for ejectment from the leased premises. - If the P has a number of claims, he may apply for summary judgment for those claims that qualify and allow the other claims to proceed to trial. - The Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act may curtail certain claims for ejectment. The application: o The procedure is by way of application, moved in motion court – HC Rule 32(2) & MC Rule 14(2). o HC Rule 32 and MC Rule 14, still apply as they did before the amendment to any pending summary judgment application initiated before 1 July 2019 (HC) and 9 March 2019 (MC). 1. The P must file the notice of motion within 15 days of receiving the D’s plea. If this deadline is missed, the opportunity to apply for summary judgment is lost. 2. The application must include a set date for the hearing, which must be at least 15 days from the delivery of the application to the D. This ensures the D has adequate notice. 3. If the D responds with an affidavit, it must be submitted by noon 2 days before the hearing. 4. If the matter isn’t resolved by agreement, argument will be heard at the hearing. The Plaintiff’s founding affidavit: o The notice of application must be supported by an affidavit deposed to by the P himself/ by any other person who is able to swear positively to the facts. o The deponent must state that the facts are within his own personal knowledge. Intellectual Property of LawGuide  o Where no single person has personal knowledge of all the facts, affidavits of more than one person are required. o If the deponent is someone acting in a representative capacity, the affidavit should state that he has been duly authorised and this authorisation needs to be obtained. o The P’s founding affidavit must comply with HC Rule 32(2) and MC Rule 14(2) – the person making the affidavit must: Read through pages 300-303 for 1. Verify the cause of action and the amount (if claimed). more context of these points 2. Identify any point of law relied upon. 3. Identify the facts upon which the P’s claim is based. 4. Explain briefly why the defence as pleaded does not raise any issue for trial. o A copy of the liquid document upon which the claim is founded must be annexed to the affidavit. Responding to an application for summary judgment: Ito HC Rule 32(3) and MC Rule 14(3), the D has 2 op ons upon receipt of the applica on for summary judgment: 1. Give security to the P to the satisfaction of the registrar for any judgment, including costs. - This applies only to a money claim or where the claim is supported by a money claim in the alternative. The application will be defeated and the action will proceed as normal. - Security may be given through a bond from a financial institution/ the D’s attorneys may stand surety. - As of 2020, security must satisfy the court rather than just the registrar/ clerk. - Two advantages of providing security: a) Avoiding rushed drafting of an affidavit: b) Avoiding disclosure of defence on oath. 2. Satisfy the court by affidavit (delivered 5 days before the application is to be heard)/ with the leave of the court, by oral evidence, that he has a bona fide defence to the action. - The affidavit must disclose the defence’s nature, grounds and material facts and must be deposed to by the D himself/ any other person who is able to swear positively to the fact that he has a bona fide defence. - Rules 32 and 14(2)(b) require the D to fully disclose the defence, while the P needs only to briefly explain why the defence does not raise an issue for trial. - HC Rule 32 and MC Rule 14(2)(b) have not been amended. - The obligations placed on the D are two-fold (as is the court’s inquiry): a) The D must fully disclose the nature and grounds of the defence and the material facts relied upon for the defence. b) The defence must be both good in law and bona fide. - A replying affidavit is the favourite method chosen by D’s for opposing summary judgment applications. - If the D either gives security/ satisfies the court that he has a bona fide defence, the court will give him leave to defend and the matter will proceed as if there had been no application for summary judgment. - The time for further pleadings to be filed runs from the date on which the court grants leave to defend. - If the D does not provide security/ satisfy the court that he has a bona fide defence, the court has the discretion to grant summary judgment against the D. Intellectual Property of LawGuide The court hearing: o The P may adduce no evidence other than that contained in the affidavit accompanying his application. o Neither party is permitted to cross-examine any person who gives evidence viva voce (orally)/ by affidavit. o HC Rule 32(3)(b): the assessment of whether a defence is bona fide is made with regard to the manner in which it has been substantiated in the opposing affidavit, viz upon a consideration of the extent to which ‘the nature and grounds of the defence and the material facts relied upon therefor’ have been canvassed by the deponent. o The court has a discretion to refuse summary judgment. The usual order: o When the P receives an affidavit from the D after summary judgment has been applied for, that discloses a defence, the P’s attorney will contact the D’s attorney to ask if he will agree that the usual order be requested by consent at the hearing. o If the D’s attorney agrees, only the P’s attorney will attend court and will ask for the usual order by consent. o The usual order means: 1. Summary judgment refused. 2. The D granted leave to defend. 3. Costs to be reserved (allows the court time to decide whether a special cost order should be awarded to either party). Special orders for costs: o General rule: the court may make an order for costs that seem to it to be just. If summary judgment is opposed and refused, the costs order will usually be ‘in the cause. o The court has discretion in awarding of costs. o If summary judgment is granted, costs of the application will usually be awarded to the P. o With a usual order by consent, the costs are reserved. o HC Rule 32(9) & MC Rule 14(10): allow attorney-and-client costs to be granted in specific summary judgment situations to show its displeasure. Ex: where the P knew the D had a valid defence. o Tactical summary judgment applications are discouraged by awarding costs against P’s who force D’s to reveal defences prematurely. o HC Rule 32(9)(b) & MC Rule 14(10)(b) – Bogus defences: courts may penalise D with attorney-and-client costs for the entire action if it is later proven their defence was baseless. 3. Consent and confession to judgment: Judgment on confession in the HC – Rule 31: o HC Rule 31(1): a D may at any time confess to judgment in respect of the whole/ part of the P’s claim as contained in the summons. o It is not permissible to confess to judgment in an action: i. For relief ito the Divorce Act. ii. Claiming nullity of marriage. o Those claims are highly personal and important to the status of the parties. Intellectual Property of LawGuide  o A D confesses to a P’s claim by signing a written confession to judgment. o HC Rule 31(1)(b): the confession to judgment must: a) Be signed by the D personally. b) The D’s signature must either: i. Be witnessed by his attorney. ii. Be verified by an affidavit deposed to by the D himself. o Once signed, the confession is delivered to the P. o Rule 31(1): the P may apply in writing through the registrar to a judge for judgment in accordance with the confession. Notice to the D is not necessary. o The D’s confession to judgment and the P’s written request for judgment are placed before a judge in chambers who decides whether/ not to grant the judgment. The D cannot withdraw consent. o Where the P’s claim is based on a single cause of action and the D confesses to judgment in respect of a part of the claim only, the P may not obtain judgment in accordance with the confession and must then proceed against the D in a separate action for the balance of the claim – the D will raise a special plea of res judicata. o A D will often agree to pay a P’s claim in instalments. The P will insist that the D signs a confession to judgment, but will agree not to take judgment unless the D defaults in any of his payments. Judgment by consent in the MC – Rule 11: o After summons have been issued, the D may consent to judgment ito Rule 11. o Rule 11(1) – a D has 3 options if he wants to consent to judgment before he has entered an appearance to defend: a) Sign the consent included in the original summons when served by the sheriff. b) Sign the consent in the copy of the summons and lodge it with the court clerk. c) Draft and sign a consent to judgment similar to the one in the summons, with two witnesses' signatures and addresses. o Rule 11(4): a D may consent to judgment after he has entered an appearance to defend by drafting his own consent to judgment, which must be similar to the consent to judgment which appears on the summons. It must be signed by himself/ his attorney. o The D is then able to avoid judgment costs incurred if the P took default judgment. o It is not permissible to confess to judgment in an action: i. For relief ito the Divorce Act. ii. Claiming nullity of marriage. o Payment into court as an alternative to consenting to judgment has been abolished. An offer to settle ito Rule 18 may be made. Intellectual Property of LawGuide  SU 11: Pre-trial: Step 1: Setting matter down for trial (Obtain a court date) Step 2: Discovery process Step 3: Technical and medical examinations Step 4: Obtaining further particulars for trial Step 5: Issuing necessary subpoenas Step 6: Arranging for special evidence Step 7: Arranging and attending pre-trial conference / alternatively attending a pre- trial meeting and judicial case management conferences Step 8: Final preparation for trial → advice on evidence Step 9: Certification that matter is trial-ready Step 1: Set Down: o Close of pleadings is provided for in HC Rule 29 and MC Rule 21A. o A court date is obtained and the matter is set down for hearing. o Pleadings shall be considered closed- a) if either party has joined issue without alleging any new matter, and without adding any further pleading; b) if the last day allowed for filing a replication or subsequent pleading has elapsed and it has not been filed; c) if the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar; or d) if the parties are unable to agree as to the close of pleadings, and the court upon the application of a party declares them closed. Set down in the HC: o Ini a ng Set Down: After pleadings are closed, the case can be set down for trial. The P, as dominus li s, has the right to do this first. If the P does not act, any party can place the case on the roll for hearing. o Applying for Trial Dates: The process begins with applying to the registrar for trial dates. Each HC division may have specific rules for this. The number of days requested for trial can affect how quickly a date is allocated. Misjudging the time needed can lead to delays or cost penalties. o No fica on: Once a trial date is set, the registrar informs all parties (Rule 29(2)(a)), but the party who applied for the date must also notify the others within 10 days (Rule 29(2)(b)). o Judicial Case Management: Even after a date is set, the case won’t proceed to trial unless certified as trial-ready by a case management judge – Rule 37A(5)(a). o Expedited Trial Roll: Some cases may be placed on an expedited trial roll if they can be resolved quickly. This requires an application and may be granted in a motion court. Intellectual Property of LawGuide Set down in the MC: o Procedure Differences: Set down in MC has been changed by Rule 22(4), which means set down often occurs after trial preparation, not after pleadings close. o Ini a ng Set Down: The P must deliver a ‘notice of trial’ to the D after pleadings close. 20 days must elapse from the date the notice of set down is delivered to the date on which the trial begins. If the P does not deliver the notice of set down within 15 days of close of pleadings, the D may set the matter down for trial – Rule 22(1). o Pre-Trial Conference: Before allocating a trial date, the magistrate may order a pre-trial conference (S 54) to ensure trial readiness. This can delay trial date allocation – Rule 22(4)(a). o No fica on: Rule 22(4)(c) - The registrar informs all parties of the trial date, but it’s good practice for the party setting the matter down to also deliver a notice of trial. o Special Cases: Sub-rules exist for undefended divorce cases, with special provisions for minor children and the Family Advocate’s involvement. - Sub-rule 5: procedure for setting down divorce hearings in Regional MC. The P can request the registrar to set the matter down for hearing if the D: 1. Fails to give notice of intention to defend; 2. Fails to deliver a plea after receiving a notice of bar; or 3. Notifies the P and the registrar or clerk of the court in writing that they do not intend to defend the action. No notice of the set-down is required to be served on the D, but if minor children are involved, the hearing date must be communicated to the Family Advocate's office. - Sub-rule 6: in the case of an undefended divorce action that is postponed, the action may continue before another court, even if evidence has already been presented. - Sub-rule 7: If a party receives notice of the trial date and has not yet made discovery (provided the required documents or evidence), they must deliver a sworn statement complying with Rule 23(2) within 20 days. Step 2: Discovery o Discovery is a portion of evidence in legal cases that consists of information recorded in documents, on tapes, digital formats/ in other ways. o Purpose: allows each party knowledge of and access to documents in the opponent’s possession relevant to trial. o Each party knows which documents are in existence that may assist his/ his opponent’s case. o This prevents the parties from being taken by surprise, eliminates disputes about issues where evidence is incontrovertible and secures the fair trial of the action in accordance with the due process of court. o HC Rule 35 & MC Rule 23: governs the manner in which information is to be furnished and requested and makes provision for matters in which the RAF is a party. - Purpose: gain access to ‘documents’ used as evidence by the opposition - Transparency: No Surprises: Eliminates disputes about issues where the evidence is indisputable - When to discover: On receipt of notice to discover – 20 days to deliver discovery affidavit - HC Rule 37(1) – if Notice of set down is received – opposing party must deliver discovery affidavit within 15 days Intellectual Property of LawGuide  - o S 50 of the Promotion of Access to Information Act (PAIA) can only be used where the requester has shown the element of need/ substantial advantage of access to the requested information at the pre-action stage. Notice to discover: When must discovery take place: o Initiation by Notice to Discover: Discovery typically starts when one party serves a "notice to discover" on the other party. The party receiving the notice must respond by delivering a discovery affidavit within 20 court days. o Automatic Discovery (Rule 37(1)): Even if a notice to discover is not served, automatic discovery kicks in once a party receives notice of the trial date. At this point, the party must deliver their discovery affidavit to the opposing party within 15 court days. o Conditions for Discovery: a) Discovery can only be requested after pleadings have closed unless permission is granted by a judge or magistrate. b) The purpose of discovery is to ensure that trials proceed efficiently. Failure to comply can result in penalties, such as cost orders. c) In MC lack of discovery may prevent a case from being certified for set down. What must be discovered: o A notice to discover contains a request for the opposing party to discover on oath: a) all documents and tape recordings which relate to any matter in question in the action; b) which the other side (/other side's agent) have in their possession or control when the notice is delivered, or which they have at any time in the past had in their possession or control. o Documents include written, printed, or electronic materials, while tape recordings include any form of recorded information under a party's (/attorney’s but not witness’s) control. o All documents or tape recordings which relate to any matter in question in the action must be discovered, whether they help or hinder a party's case – establishes transparency. o A document will be relevant if it contains information that might directly or indirectly advance a party's case or damage that of his or her opponent. It will be indirectly relevant if the information may 'fairly' lead a party to a 'train of enquiry that may advance his or her case or damage that of his or her opponent. The discovery affidavit: o HC Form 11 & MC Form 13 to Annexure 1 prescribe the format and content of the discovery affidavit referred to in Rule 35(2) and 23(2). o There are 2 schedules to a discovery affidavit. o Schedule 1: Documents currently in possession, divided into: - Part 1: those open for inspection - Part 2: those objected to – privileged information. o Schedule 2: Documents that were once in possession but no longer are. Ex: you sent the original letter so you only have a copy. Intellectual Property of LawGuide  o Each document chronologically listed in the schedule should be identified by a description which will usually include its date. It is also customary to number each document and indicate whether or not the document is an original/ copy. Ex: 1. 2/1/23 Letter of plaintiff to defendant - copy 2. 7/1/23 Letter of defendant to plaintiff – original o Where there is a large number of documents of the same type, such as invoices, which it would be pointless and time-consuming to itemise, they are 'deemed to be sufficiently identified' if described 'as being one of a bundle of documents of a specified nature, which have been initialled and consecutively numbered by the deponent. Ex: Bundle of plaintiff's current account bank statements from 1/2/98 to 1/2/03 - originals. o Examples of documents that are privileged: I. a document implicating a party in a criminal offence, which is protected by the privilege against self-incrimination; II. a document written by one spouse to another spouse, which is protected by marital privilege; III. a written offer made without prejudice with the intention of settling a matter; and IV. a document written by an attorney or advocate to his or her client, or vice versa, which is protected by legal professional privilege o Privileged documents, such as communications between attorney and client, do not need to be listed in the schedules. Remedies for failure to discover: Notice to Inspect Undisclosed Documents HC Rule 35(3) & MC Rule 23(3): o A party can issue a written notice to the opposing party requiring them to either: a) Make undisclosed documents or tape recordings available for inspection, or b) Declare under oath within ten days that such documents do not exist and, if known, their whereabouts. o The notice can pertain to specific documents or categories of documents. Document or Tape Recording Use Restrictions – HC Rule 35(4) & MC Rule 23(4): o If a party fails to disclose a document or tape recording, they cannot use it at trial without court permission. The opposing party may use the undisclosed item. Application to Compel Discovery HC Rule 35(7) & MC Rule 23(8): o A party can apply to the court to compel discovery if the other party fails to disclose documents. The court may order the delivery of a discovery affidavit by a specific date and may dismiss the claim or strike out the defence if the affidavit is not provided. Notice to Inspect HC Rule 35(6) & MC Rule 23(6): Intellectual Property of LawGuide  o After receiving a discovery affidavit, a party may issue a notice requiring the opposing party to produce the documents for inspection. Documents must be available for inspection for 5 court days. o A party receiving this notice has 5 court days to deliver a ‘notice to inspect’ stating: a. a date within the next 5 days for inspection of the listed documents. b. Place: Attorney’s Office. c. Time: Normal Business Hours. o Failure to allow for inspection: not permitted to use at trial, may be compelled by application to permit inspection, thereafter, apply to dismiss claim or strike out defence. Notice to Specify HC Rule 35(8) & MC Rule 23(9): o After pleadings are closed, a party can request the opposing party to specify which documents or tape recordings they intend to use at trial. o Opposing Party must within 15 court days before the trial deliver a notice setting out: a) Nature of (dates and author) documents in their possession that they intend to use at Trial b) Whereabouts of the documents not in their possession that they intend to use at trial Notice to Produce HC Rule 35(10) & MC Rule 23(11): o A party can request that the opposing party produce the original document or tape recording at trial if they intend to use it as evidence. This notice should ideally be given at least 5 days before trial, but the court may allow notice to be given at trial itself. Step 3: Medical examina ons and technical inspec ons – HC Rule 36 & MC Rule 24: Medical Examinations for Bodily Injury Claims: o HC Rule 36 and MC Rule 24): provide the procedures for use by a D who is being sued for damages for personal injuries suffered by the P. o The procedure involves an examination of the P by a suitable medical practitioner. The purpose of the procedure is to enable the D to ascertain the extent and severity of the P’s injuries, mainly for the purpose of assessing whether or not the quantum (value) of the P's claim is reasonable. Arranging the Examina on: o HC Rule 36(1): any party to proceedings in which damages/ compensation is claimed in respect of bodily injuries, has the right to require any party claiming such compensation whose health is relevant to the determination of such compensation, to submit to a medical examination. o HC Rule 36(2): (a) A party requiring another party to submit to a medical examination shall deliver a notice to such other party that— i. specifies the nature of the examination required; ii. specifies the person or persons who shall conduct the examination; Intellectual Property of LawGuide  iii. specifies the place where and the date (being not less than 15 days from the date of such notice) and time when it is desired that the examination shall take place; and iv. requires the other party to submit himself or herself for the medical examination at the specified place, date and time. (b) The notice contemplated in paragraph (a) shall – i. state that the party being examined may have his or her own medical adviser present at the examination; and ii. be accompanied by a remittance in respect of the reasonable expenses to be incurred by the other party in attending the examination. o The person being examined may have a medical advisor present (and legal advisor). Objec ng to the examina on: o Party objecting, may within 5 court days of receiving notice of the proposed exam, object on the following grounds: 1. Nature of the proposed exam 2. Place /person conducting the exam 3. Amount of expenses tendered o If objection is unfounded apply to judge to set the conditions for the examination Report on the examina on: o The party requesting the exam must ensure that the examiner makes a full written report (results and opinions). o A full report must be provided within 2 months (HC) promptly to all parties. o Within 5 days of receipt of the report, the party must inform all parties in writing of the existence of the report and immediately furnish the other party with a complete copy thereof. o The MC does not impose these time constraints on the furnishing of the report by the medical examiner or by the party requesting the report. Other medical reports: o The party may request by notice for the claimant to make available any medical records relevant to the assessment of damages within 10 days (HC) / 15 days (MC). o Ex: Medical Reports, hospital records, X -Rays. Technical Inspections for Object-Related Claims: o Rule 36(6) and Rule 24(6): allow for the inspection of objects, movable/ immovable, relevant to the case, such as vehicles or property. The inspection request must be in writing, and the object remains under the control of the possessing party. Arranging the inspec on: o The party requiring inspection must give written notice to the party in possession of the object, requiring him or her to make it available for inspection for a period of 10 days from the date of receipt of the notice. This may happen at any time during the course of proceedings. Objec ng to Inspec on: o Rule 36(7): the party who is called upon to submit the particular object for inspection or examination may ask the party requesting it to specify the nature of the inspection or Intellectual Property of LawGuide  examination. If inspection might cause prejudice (damage to the object), the party may refuse. o Disputes can be referred to a judge, on notice to the other party – the judge has the discretion to make such order as deems fit. Report on the inspec on: o A written report is required by the inspector and must be shared with all parties. o The report must be furnished within two months of the date of the examination and furnished to the other parties within five days of receipt of the report. Step 4: Request for further par culars: o After the close of pleadings and 20 court days before the trial, the only further particulars that may be requested ito HC Rule 21(2) & MC Rule 16 are those which are strictly necessary to enable the party requesting them to prepare for trial. o The purposes of further particulars for trial: 1. To prevent any surprises at the trial. 2. To inform a party, with greater precision, what the opposing party is going to prove in order to enable him to prepare his case. o The notice requesting further particulars must be signed by an attorney (MC)/ advocate and attorney (HC) – unless the party is representing themselves. o Further particulars may be requested from sources other than pleadings and may ask limited questions about the opposing party’s sources of evidence that goes beyond discovery/ examination. o The party that has been asked to furnish further particulars, must furnish them within 10 days of receiving the request – failing – the party requesting the particulars may make an application to court to compel delivery. o Parties who abuse the process by fishing for particulars not strictly necessary for trial may receive an adverse cost order – HC Rule 21(5) & MC Rule 16(5). o In practice, some of the information which would usually be obtained by way of request for particulars for the purpose of trial may be sought at a Rule 37 (pre-trial) conference. Step 5: Subpoena of witnesses: o The method a party uses to obtain the attendance of a witness at court is by serving a subpoena on him. o It is a notice in the form of a court order to a witness telling him that he is required to give evidence in court under threat of penalty. Procedure in the HC: Normal subpoena: o HC Rule 38 deals with the subpoena of witnesses to give evidence at a HC trial – should be read with S 35 of the Superior Courts Act which deals with the manner of securing attendance of witnesses. o Whichever party wants to subpoena a witness to give evidence on his behalf simply draws up a subpoena that corresponds with Form 16 of the First Schedule to the HC Rules. o The subpoena is issued by the registrar and served on the witness by the deputy sheriff. Intellectual Property of LawGuide  o The court may set aside a party’s right to subpoena a witness if it is certain that the witness who has been subpoenaed will be completely unable to assist the court in its determination of the issues raised at trial - S 36(5) of the Superior Courts Act. o A subpoena (Form 16) informs the witness when and where he has to appear to give evidence and on whose behalf he will be required to give evidence. Subpoena duces tecum: o Rule 38(1)(a): a witness may be required to bring a deed, instrument, writing/ thing that is stipulated in the subpoena, to court. This subpoena is called a subpoena duces tecum (‘bring with you’). o It is a method by which a party is able to obtain access to documents/ other physical evidence that may be important to their case when these items are in the possession of persons who are not parties to the case. o A witness who claims the document is privileged must still comply with the subpoena, but must satisfy the registrar/ court that his claim of privilege is legally justified. o Rule 38(1)(b): sets out the process for requiring the production of a document by way of a subpoena duces tecum. The subpoena must be substantially similar to Form 16A in the First Schedule. Within 10 days of receipt of the subpoena, the document must be lodged with the registrar, unless the witness claims privilege. o The registrar sets the conditions upon which the document may be inspected and copied to ensure its protection. o Within 5 days of lodgement with the registrar, the party subpoenaing for the production of the document shall inform all other parties that the document is available for inspection and copying and of any conditions set by the registrar. o After inspection and copying, the person who produced the document is entitled to its return. Failure to comply with a subpoena: o Form 16 includes a warning directed at the witness setting out the penalty for failure to obey a subpoena – if the witness has no reasonable excuse – fine/ 3 months imprisonment. o S 35 of the Superior Courts Act – consequences if a witness fails to: 1. Either come to court/ remain at court in compliance with a valid subpoena/ 2. Fails to produce any document/ thing in accordance with a valid subpoena duces tecum/ 3. Deliberately evades service of the subpoena. o S 35(2) empowers a court to issue a warrant for the arrest of such witness. o S 35(3) allows the court to order such witness to be detained to secure his presence as a witness/ production of any document/ thing. o An attorney preparing a subpoena must ensure: 1. The subpoena must be properly served by the sheriff. 2. The subpoena should not be served too close to the trial date (reasonable notice). 3. All the witness fees due to the witness should either be paid to him/ offered to him in the subpoena. 4. For a subpoena duces tecum the document/ thing must be sufficiently particularised. P332-333 – not covered Step 6: Special evidence: a) Expert evidence – HC Rule 36(9) & MC Rule 24(9): o A party intending to call an expert must: Intellectual Property of LawGuide  i. In the HC: P must deliver a notice of his intention to call an expert no more than 30 days after close of pleadings. The D must provide such notice no more than 60 days after close of pleadings. MC is 15 and 30 days. ii. In the HC: P must deliver a summary of the expert’s opinion, including his reasons for that opinion not more than 90 days after close of pleadings and the D not more than 120 days after close of pleadings. MC is 45 days and 60 days. o The summary of the expert’s evidence must indicate: a) The expert’s qualifications and experience in order to establish him as an expert. b) The facts and data on which the opinion is based. c) The process of reasoning used to arrive at the opinion. d) The expert’s reasoned conclusions (opinion). o If not, the expert cannot lead evidence unless the court and opposing parties’ consent. o The aim is to allow the opposition to prepare their own expert and eliminate the element of surprise. b) Photographs, Plans, Diagrams and Models – HC Rule 36(4) & MC Rule 24(4): In the HC: o Deliver notice of intention (no more than 60 days after close of pleadings – MC = 30 days) which offers inspection thereof. o Purpose of the notice: a) Without giving notice, the evidence may not be used. b) To obtain the consent of the opposing party to the admission of the evidence without proof. o A party using such notice to ask the opposing party to admit the evidence is asking his opponent to admit the following. a) That the plan, diagram, model/ photographs is authentic. b) That the physical features shown on the pan, diagram, model/ photograph were present when it was drawn, made/ taken. o Rule 36(10)(b): requires the opposition to respond by written reply within 10 court days (15 days prior to trial). If the opposition refuses to admit the evidence, it will have to be proved at trial (person who created the evidence must testify). o Once admitted the evidence is accepted as an authentic representation. P338-341 – not covered Step 7: Pre-trial conference and judicial case management: In the HC: o HC Rule 37: a pre-trial conference must be held between the parties no less than 30 days prior to the date of the trial. o The purpose of a Rule 37 conference is to curtail the proceedings as much as possible. o To achieve this, the parties must try to define the points of issue between them, reach agreement on as many issues as they can and decide upon the most effective way of conducting the trial. o The conference gives the parties a chance to curb costs and settle the matter. Intellectual Property of LawGuide Calling the conference: o Rule 37(2)(a): once a P receives notice of the trial date he must deliver a notice to the D within 10 court days, specifying the date, time and place for the pre-trial conference. o Rule 37(2)(b): if the P failed to deliver notice within 30 court days, the D may deliver a notice specifying the date, time and place for the pre-trial conference. o The parties may agree to amend the time and place, but it may not be held less than 30 days before the date of the trial – failure = adverse costs order of it delays the case. Se ng the agenda: o Rule 37(4): not less than 10 days before the conference, the parties must each deliver to the other a notice of each party’s agenda for the conference. o The following must be listed on the notice: 1. The admissions that are required from the opposing party, 2. The enquiries that will be directed at the opposing party, which have not been included in the request for particulars for trial, 3. Any other matters regarding preparation for trial that the party delivering the notice intends to raise for discussion. The conference: o The conference is held between the advocates and the attorneys involved in the matter without their clients. The presence of advocates is optional. o The conference takes place in the chambers of the most senior practitioner involved. Rule 37 Minute: o After the conference (a day/ two), a Rule 37 minute (record of proceedings and the decisions reached) is prepared by the P’s attorney from notes taken by the most junior advocate at the conference. o All the parties present must prepare and sign the minute. It must be filed with the registrar not later than 25 days prior to the trial date. o Rule 37(6): the following points must be covered in the minute: 1. The place, date and duration of the conference and the names of the persons present. 2. If a party feels prejudiced because another party has not complied with the rules of court, the nature of non-compliance and prejudice must be recorded. 3. That every party claiming relief has requested his opponent to make a settlement proposal and that such opponent has reacted thereto. 4. Whether any issues have been referred by the parties for mediation, arbitration/decision by a third party and on what basis it has been so referred. 5. whether the case should be transferred to another court; 6. which issues should be decided separately in terms of Rule 33(4); 7. the admissions made by each party; 8. any dispute regarding the duty to begin or the onus of proof; 9. any agreement regarding the production of proof by way of an affidavit in terms of Rule 38(2); 10. which party will be responsible for the copying and other preparation of documents; and 11. which documents or copies of documents will, without further proof, serve as evidence of what they purport to be, which extracts may be proved without proving the whole document or any other agreement regarding the proof of documents. P343-347 – not covered Intellectual Property of LawGuide Step 8: Final prepara on for trial: Advise on evidence: Purpose of Advice on Evidence:  After pre-trial proceedings, an advocate is typically briefed by an attorney through an "advice on evidence" to ensure that the client’s case is presented effectively and thoroughly at trial. This advice reviews all relevant aspects of the case to identify any omissions in preparation. Key Issues Addressed in Advice on Evidence:  Form of Pleadings: Review whether pleadings are properly closed, if additional pleadings are needed, if amendments are necessary, or if further particulars for trial are required.  Discovery Process: Ensure that the discovery process is fully completed by both parties.  Issues and Onus of Proof: Identify issues in dispute versus those that are common cause, determine which party bears the onus of proof for each issue, and decide which party should begin presenting evidence at trial.  Evidence Available: Review documentary and oral evidence, assess if further evidence or expert witnesses are needed, consider the necessity of models, plans, photos, or diagrams, and determine how evidence should be presented.  General Observa ons: Evaluate if further preparation is required, assess the prospects of success at trial, and discuss the quantum involved to assist in setting a minimum settlement amount. A orney’s Role in Briefing Counsel:  Attorneys should not undervalue the advice on evidence. When briefing counsel, they should include their own analysis of the case, noting admitted and denied averments to determine what needs to be proven at trial.  The brief should include relevant documents such as pleadings, discovery documents, witness statements, expert reports, and evidentiary documents (contracts). A list of all documents provided to counsel should be included.  The brief should also highlight any concerns or issues for counsel’s consideration. Preparation of trial bundles: o One of the final tasks in preparation for trial: the creation of bundles/ collections of documents for use at trial. Documents are discovered by the Rule 35 discovery process. o Each party needs to disclose which documents it intends to use in evidence to the other party. o One of the parties should be tasked with gathering the original documents from both parties into one bundle in chronological order. Each page should be consecutively numbered (paginated). o An index listing each individual document should be prepared and affixed to the form of the bundle with a page reference. o The bundle must be photocopied to provide copies for the attorneys and advocates as well as one copy for the use of persons giving evidence. Intellectual Property of LawGuide  o The judge is provided with the bundle containing the original documents. o The task of collating, indexing and paginating is usually that of the P as dominus li s (master of the suit). o There is no rule/ convention pertaining to this practice in the MC. Indexing and paginating the court file: o Final task in preparation for trial. o HC Rule 62(4): an applicant/ P shall not later than 5 days prior to the heating of the matter collate and number consecutively and suitably secure, all pages of the documents delivered and shall prepare and deliver a complete index thereof. Failure to prepare the court file: o The court will strike the case off the roll with an appropriate costs order against the P. o The court may even order the P’s attorney to pay the wasted cost out of his own pocket. Intellectual Property of LawGuide  SU 12: Trial: Trial in the HC: o Rule 39 sets out the procedures to be followed, but the court has the discretion to vary any procedures ito Rule 39(20). The HC enjoys inherent jurisdiction to vary its procedures in the interests of justice. Parties not present: o Failure on the part of a party to appear at trial may lead to default judgment being taken against them. o Rule 39(2): a D who has been barred from pleading and who has failed to have the bar lifted, may not, without the special permission of the court, appear at the trial to defend the matter. Open court: o S 32 of the Superior Courts Act: all proceedings must be carried on in open court (press and public may be present). o This reflects the important principle that justice should be seen to be done. o In special cases matters may be heard in camera with the public and press excluded. o What constitutes a special case will depend on the circumstances. o Embarrassment and prejudice to a witness have been held to constitute a special case. o The overriding criterion is the proper administration of justice. Recalcitrant witnesses: o S 36 of the Superior Courts Act: covers the way in which witnesses may be dealt with if they refuse to give evidence/ produce documents. o If a witness: I. refuses to take the oath or make an affirmation; or II. having taken an oath or having made an affirmation, refuses to answer such questions as are put to him; or III. refuses/ fails to produce any document or thing which he is required to produce without any just excuse for his refusal or failure, the court may adjourn the matter for up to 8 days and commit the recalcitrant witness to prison for this period. o The court may keep on adjourning the matter for up to 8 days, recommitting the recalcitrant witness to prison for the periods of the adjournments until he agrees to do what is required of him. Intellectual Property of LawGuide Duty to begin: o At the start of the trial, the parties may request the court to hear argument and make an order as to which of the parties is under the obligation to adduce evidence first. o Rule 39(11) of the High Court Rules: - Either party may apply at the opening of the trial for a ruling by the court upon the onus of adducing evidence, and the court after hearing argument may give a ruling as to the party upon whom such onus lies: Provided that such ruling may thereafter be altered to prevent injustice. o The P is obliged to adduce evidence first, because the overall onus is on him to prove his case on a balance of probabilities. o Secondary evidentiary burden: places a duty on a party to combat a prima facie case made by the opposing party. To ascertain where the evidential burden lies, admissions made in the pleadings must be examined. o Each issue (case) may have a different onus. Ex: breach of contract and delictual damages = P. o Ex: if the D files a plea and admits the allegation (admits the contractual terms and explains why the breach was lawful) – then the D bears the onus of proof. o The party who bears the onus will briefly take the court through the pleadings, explain what the case is about, outline the averments they intend to prove and highlight the issues which are common cause. o If multiple issues exist, with different burdens on the P and D, the P must first present evidence for the issues they are responsible for. The D then presents evidence for their issues. The P may call rebuttal evidence for issues where the D had the burden. o While an action generally continues in the same court until final judgment, transferring a part-heard matter to another court may be justified by considerations of justice and good sense. Opening address: o Opening address: At the trial's start, the party with the burden of proof (usually the P) or their advocate may briefly outline the facts they intend to prove. o The opening address is a concise and sober explanation of the issues for the judicial officer, not a dramatic speech. It involves taking the court through the pleadings, explaining the case, and listing the averments that must be proven, distinguishing them from those agreed upon by both parties. Intellectual Property of LawGuide Plaintiff’s case: o After the opening address, the party with the duty to begin (typically the P) presents their case by leading witnesses who provide evidence supporting their claims. o HC Rule 39(8): each witness is examined, cross-examined, or re-examined by only one advocate for the party. o The evidence presented is generally guided by the pleadings, and any evidence not covered by the pleadings is typically inadmissible unless it doesn't prejudice the other party. o Witnesses are led in their evidence-in-chief through open-ended questions from the advocate who called them, as leading questions (which suggest an answer) are not allowed. o The opposing side's counsel then cross-examines the witness to challenge their testimony, highlight inconsistencies, or discredit the evidence by showing that the witness is mistaken or has an inaccurate memory. o Following cross-examination, the counsel who originally called the witness may re-examine them to address any discrepancies or damage done during cross-examination. However, no new matters can be introduced during re-examination. o Closing the Case: - This process is repeated for each witness until the party who began closes their case. Then, the opposing party presents their case, following the same pattern with their witnesses. - The opposing party eventually closes their case as well. - If the court wishes to call a witness, both parties must consent, although the court can also take certain actions on its own before judgment (call witness for further examination). Application for absolution from the instance: Plain ff's Case: o The P’s advocate typically begins by presenting evidence and leading witnesses in support of the P's case. Once all evidence is presented, the P’s case is closed. Applica on for Absolu on: o After the P’s case is closed, the D’s advocate may apply for "absolution from the instance," which asks the court to dismiss the case without the D needing to present any evidence. o This is possible because the P bears the burden of proving their case on a balance of probabilities. If the P fails to meet this burden, the D is not obligated to provide evidence. Court's Decision: o The court applies a specific test to decide whether to grant absolution. The key question is whether the P has provided enough evidence for a reasonable person to potentially rule in their favour. o This test is easier for the P to pass at this early stage than it would be at the close of the entire case. Absolution is typically only granted if the P’s evidence is very weak or has been discredited. o The court will refuse absolution if the evidence suggests several reasonable possibilities, one of which supports the P’s case. Outcome: o If the court grants absolution from the instance, the case ends. However, the P can still pursue the matter by initiating a new lawsuit. Intellectual Property of LawGuide  o If the application is denied, the D must proceed with presenting their evidence. Special Considera ons: o Absolution cannot be granted if the D also bears the burden of proving certain issues, even if the P presented evidence first. In such cases, the D must still provide evidence to address those issues. Defendant’s case: Opening the Case: o If the D’s application for absolution from the instance is denied, or if no such application was made, the D must proceed to open their case. o The D may choose to close their case immediately without presenting any evidence if they believe the P's case is insufficient to prove the claim on a balance of probabilities, even if uncontested. Risk of Closing Without Evidence: o Closing the case without presenting evidence is risky and requires strong legal judgment, as the court has just rejected the application for absolution, indicating the P has presented enough evidence for a reasonable person to potentially rule in their favour. o The court will then reassess whether the P's evidence is sufficient to meet the balance of probabilities standard. Presen ng Evidence: o In most cases, the D will need to present evidence to counter the P's allegations. o The D will begin by addressing the court on what they intend to prove in their defence, followed by leading witnesses to support their case. o These witnesses can be cross-examined by the P and then re-examined by the D. Closing address: HC Rule 39(10): o This rule outlines the procedure for closing addresses by the parties or their legal representatives after both sides have closed their cases. Process: o The P (or their advocate) addresses the court first, followed by the D (or their advocate). o The P is then allowed a reply, focusing on any matters arising from the D's address. Content of the Closing Address: o Counsel reviews the evidence presented during the trial, highlighting what has been proven. o They assess the performance, credibility, and reliability of the witnesses, discussing the weight of their testimony. o Counsel may also discuss inherent probabilities in the case and debate legal points with the opponent and the court. Reopening the case: Permission Required: o A party cannot reopen their case after closing it without the court's permission. Court's Reluctance: Intellectual Property of LawGuide  o The court may allow reopening at any time before judgment, but the longer the trial has progressed, the more hesitant the court will be. Condi ons for Reopening: o The party must demonstrate that they exercised proper diligence in obtaining evidence for the trial. o Evidence that has emerged must have been unavailable or unattainable before closing the case. If it was available, an acceptable explanation must be provided for not presenting it earlier. o The new evidence must be material and likely to have a significant impact, though it need not be conclusive. o The court will deny reopening if it believes evidence was intentionally withheld. Inspections in loco: Purpose: o Inspections in loco are conducted to help the court and legal parties better understand witness testimony by visiting the location where the events occurred or viewing real evidence that can't be brought to court. Judicial Inspec ons: o When the judge is present, the inspection is called a judicial inspection. Inspections may also be carried out without the judge. Applica on and Timing: o Either party may apply for an inspection in loco at any time during the trial, and the court has the discretion to grant or deny the request. The court may also initiate an inspection on its own. The best time to conduct an inspection is early in the trial. Procedure: o Notes are taken during the inspection, and observations are recorded upon returning to court. Legal representatives should ensure relevant features are highlighted to the judge during the inspection. Reference to a referee: Legal Basis: o Under section 38 of the Superior Courts Act, certain complex matters may be referred to a referee for inquiry and report. Types of Ma ers: o Extensive examination of documents or technical/local investigations. o Matters related to accounts. o Any other matters as needed. Process: o The court may seek the expertise of a referee in technical cases. The referee investigates and submits a report. Intellectual Property of LawGuide  o The court can adopt, modify, or return the report for further inquiry. Once adopted, the report holds the same authority as a court ruling. Trial in the MC: o S 5 of the MC Act: apart from exceptional circumstances, the trial must take place in open court. Key Rules and Procedures: o Rule 29: Governs trial conduct, including the order of evidence presentation, the possibility of separating issues (similar to HC Rule 33(4)), and the procedures for opening and closing addresses. o Rule 29(3): Requires an opening address to outline disputed facts or legal questions, which is crucial since the Magistrates' Courts lack a compulsory Rule 37 procedure. o Rule 29(4): Allows the court to deal with specific issues separately to expedite proceedings, potentially eliminating the need to address other issues. o Rule 29(5): Provides that if the parties agree on the facts, and the dispute between them is essentially a question of law, then the facts may be admitted, and the court may give a judgment without hearing further evidence. In this situation, the parties have to agree on a set of facts to be admitted. o Rule 29(6): If both facts and law are in dispute, and the court believes that it can dispose of the matter by deciding the question of law only, then it is entitled to do so. o Rule 29(7) to 29(12): Dictates the order of evidence presentation, similar to HC practice, and includes considerations for recalling witnesses or introducing further evidence. Witness and Evidence Management: o Witnesses generally wait outside the courtroom until called to avoid influencing testimony. The P testifies first, followed by witnesses. o Rule 29(11): Factors for admitting further evidence after closing a case: 1. the reason why it was not led timeously; 2. the degree of materiality of the evidence; 3. the balance of prejudice; 4. the general need for finality in judicial proceedings; and 5. the stage that the particular litigation has reached. o Rule 29(12): Deals with the recalling of a witness for further examination. o Rule 29(14): Deals with the closing addresses Special Provisions: o Recalcitrant Witnesses: Addressed under Section 51 of the Magistrates' Courts Act. o Trial Venue: Usually held in the court from which the summons was issued, as per Rule 29(1). Judicial Considera ons: o The court may decide legal questions before hearing evidence if they can resolve the entire matter (issues of prescription). Intellectual Property of LawGuide  SU 13: Judgment, interest and costs: Judgment: o At the end of a trial, the court must make a decision based on the law and the evidence presented to it, called a judgment. o Difference between a judgment and an order: a) Judgment: the decision of the court in response to the relief claimed in an action. b) Order: the decision of the court in response to the relief claimed under an application/ another procedure. o According to Jones and Buckle, a judgment has 2 functional components: 1) Command to the other party coupled in an appropriate case with a warrant to the sheriff to enforce the command. 2) Regulates the legal relationship between the parties and settles their mutual rights and obligations to the extent necessary for its grant. Judgment in the HC: o General Rule: The HC's authority to grant judgments is derived from common law. o At the Close of the P’s Case: The D may apply for absolution from the instance if the P has not provided sufficient evidence. If granted, the case ends, and the P must start anew if they wish to pursue the matter. o At the Close of the D’s Case: The court typically reserves judgment to review the case thoroughly. Judgments can be for the P, the D, or absolution from the instance. o Absolution means neither party has convinced the court on the balance of probabilities, and the case can be refiled if the burden was on the P. If the D had the burden, judgment would be for the D/ the P, depending on who proved their case. o Absolution from the instance can be granted 1. Where neither party has convinced the court that the balance of probabilities favours them; 2. The result of the case depends upon the credibility of witnesses who give contradictory evidence which makes it impossible to decide which is truthful o At the close of the Defendant’s case (At the end of the Trial) : - Judgment for the P and costs: Where the P has proved their version on a balance of probabilities - Judgment for the D & costs: Where the D has proved their version on a balance of probabilities Judgment in the MC: o Sec on 48 of the MC Act: Details types of judgments, including: i. Judgment for the P/ D based on their proof. ii. Absolution from the instance if neither party has justified a judgment. Intellectual Property of LawGuide  iii. Costs orders and arrangements for payments or suspensions. o Absolution from the instance in MC dismisses the case, allowing the P to file a new action. This judgment does not amount to res judicata (a matter already judged) and does not preclude the P from bringing the case again. o Possible orders: a) Order suspending further proceedings pending arrangement for the satisfaction of the judgment b) Order for the payment in instalments (MC Act ss65J/ s73) c) Order, subject to conditions, against a party in whose favour judgment is given d) Order for payment of an amount of money Varia on and se ng aside of the court’s judgment: o General Rule: Once a court has delivered a judgment, it is generally considered functus officio, (cannot revisit/ alter the judgment). o The original court may not change its decision unless correcting minor errors, such as ambiguities, typographical mistakes/ omissions. Thus, only under exceptional circumstances may the original court alter its judgement: a) To correct an error in a judgment. b) Cancellation and/ or rescission. o Rescission: The court can rescind (cancel) judgments if they were given in error, by common mistake/ in certain default judgments. This does not change the judgment's essential substance but addresses errors or mistakes. o Correction: Courts can correct clear mistakes in judgments, such as clerical errors or accidental omissions, but cannot amend the judgment's substance. o The court has more flexibility to vary or set aside interlocutory (preliminary) orders compared to final judgments. Variation in the HC: Common Law Varia on: o The HC can clarify/ correct its judgments by including overlooked matters, clarifying ambiguities, or correcting clerical errors. Applications must be made within a reasonable time of the judgment being granted. o The HC has varied its judgments to: a) allow for the inclusion of accessory or consequential matters that have been inadvertently overlooked or that the court has inadvertently failed to grant; b) clarify a judgment, the meaning of which is obscure, ambiguous or uncertain; correct a clerical, arithmetic or other error; or correct, alter or supplement a costs order. Rule 42(1) Varia on: o HC Rule 42(1) supplements common law by providing for certain instances in which the court may either mero motu/ on application by one of the parties set aside or vary one of its judgments or orders. o The element that is more or less common to all the instances of variation or rescission under this particular rule is that of error. o This rule allows for: 1. Erroneous Orders: Variation or setting aside of judgments erroneously granted or in the absence of a party. 2. Ambiguity or Error: Correction of ambiguous or erroneous judgments. Intellectual Property of LawGuide  3. Common Mistake: Rescission of judgments based on mutual mistakes of the parties. Rescission of Default Judgments in the HC: o In the HC, default judgments may be rescinded in the following ways: 1. in terms of Rule 42(1) of the High Court Rules; 2. in terms of Rule 31(2)(b) and 31(5)(d) of the High Court Rules; 3. Under the common law and 4. By consent in terms of Rule 31(6)/ if the judgment debt including interest has been paid. Rescission Under Rule 42(1): o Purpose: Rule 42(1) allows for rescission of a judgment granted due to an error. It differs from rescission under Rule 31 and common law by not requiring good cause. o Key elements: - Rule 42(1)(a): Rescission for judgments granted erroneously in the absence of an affected party. This often involves default judgments or consent orders granted based on mistaken premises. - Ex:  Procedural errors, like believing a defendant knew of a hearing.  Substantive errors, such as a defendant already having paid the claim. - The error must generally be apparent from the record, but the court can consider the context. - Rule 42(1)(b): Allows for the correction of patent mistakes in judgments. - Rule 42(1)(c): Provides rescission for orders made based on a common mistake between parties. Rescission Under Rule 31: o Rule 31(2)(b): Applies to default judgments in unliquidated claims. The D must: o Apply within 20 days of knowledge of the judgment. o Show good cause, including: 1. Reasonable Explanation: The default was not wilful. 2. Bona Fide Defence: A substantial defence exists. 3. Bona Fide Application: The application is made with the intent to contest the judgment, not to delay. o Rule 31(5)(a): Provides for reconsideration of judgments granted by the registrar if applied for within 20 days of acquiring knowledge of the judgment. Rescission Under Common Law: o Grounds: 1. Fraud: The party must prove fraudulent evidence was the cause of the judgment. 2. Justus Error: Rarely used. 3. New Documents: If new evidence emerges. 4. Default Judgment: Must show sufficient cause. o Requirements: - Reasonable explanation for failure to appear. - Bona fide defence with a prima facie case. Rescission Under Rule 31(6) and S 23A Superior Courts Act: Intellectual Property of LawGuide  o Rule 31(6)(a): Allows rescission with the P's written consent for default judgments. o Rule 31(6)(b): Rescission is possible if the judgment debt and costs are paid, regardless of consent. Requirements include:  Application form and proof of payment.  Proof of service on the judgment creditor.  Hearing can be set 10 business days after service. o Sec on 23A of the Superior Courts Act: Mirrors Rule 31(6) provisions, detailing requirements for rescission based on payment or consent. Void Judgments: Criteria for Void Orders: 1) The order was made without legal citation of the party. 2) The case was conducted without proper mandate. 3) The court lacked jurisdiction. General Rule: Even if a judgment is incorrect, it must be followed until properly set aside. Abandonment of judgment – HC Rule 41(2): o A party may abandon a judgment, in whole or in part, by delivering a notice of abandonment. o Partial abandonment means the judgment remains effective in part, according to the abandonment. Rescission and Variation of Judgments in the MC: General Rescission and Varia on (Sec on 36 of the MC Act) o Grounds for Rescission/Variation: 1. Absence of a party. 2. Void judgments or those obtained by fraud or mutual mistake. 3. Correction of patent errors if no appeal is pending. 4. Judgments where no appeal lies. o Procedure (Rule 49(7)): - Application must be made on notice to all parties. - Supported by affidavits detailing grounds for rescission/variation. Rescission of Default Judgments (Rule 49) o Application Timing: - Must be made within 20 court days from when the judgment was known. o Good Reason for Rescission: - Lower standard than "good cause" but extends the magistrate's discretion. - Magistrate can grant rescission in exceptional circumstances even without good cause. o Good Cause: - Similar to High Court Rule 31(2)(b). - Requires a reasonable explanation for default, a bona fide defence, and no wilful default. - The affidavit should explain default reasons and outline a prima facie defence. Types of Applica ons: 1. Defendant Seeking to Defend – Rule 49(3) : - Affidavit must explain the default and present a prima facie defence. Intellectual Property of LawGuide  - Onus is on proving wilfulness. 2. Defendant Willing to Pay – Rule 49(4): - No need to show good cause if the judgment is satisfied or arrangements made. 3. Plaintiff's Written Consent – Rule 49(5): - Application for rescission if the P agrees. - Proof of P’s consent required. 4. Other Applicants – Rule 49(6): - Application supported by affidavits and reasons for seeking rescission. Interest: General Overview Interest is a monetary charge calculated as a percentage of the principal debt, known as the capital amount. Interest accrues from when the debt is due until it is fully paid, continuing on the reducing balance of the capital amount. Payments made by the debtor first cover accrued interest before reducing the principal debt. Interest is a separate claim and must be explicitly included in the particulars of claim. Rate of Interest o Simple vs. Compound Interest: - Simple Interest: Calculated only on the principal amount. - Compound Interest: Calculated on the principal plus any accrued interest, often compounded monthly. o Prescribed Rate: If no rate is agreed upon, the Prescribed Rate of Interest Act applies. The rate is the repurchase rate plus 3.5% per annum. It changes periodically based on the South African Reserve Bank’s repurchase rate but remains fixed for the debt from the date it starts accruing. Date from Which Interest Runs o Liquidated Debts: - Mora ex Re: Interest begins when the debt is due as per the agreement. No further demand is required for interest to accrue. - Mora ex Persona: Interest begins from the date of a formal demand for payment if the contract does not specify a due date. o Unliquidated Debts: Interest runs from the date the debt is claimed by a demand or summons, whichever is earlier, rather than from the date of judgment. In Duplum Rule Interest cannot exceed the principal debt. It stops accruing when the total amount of interest equals the principal or when the debt (principal plus interest) is fully paid. The National Credit Act also imposes a similar cap on interest for credit agreements. Dra ing a Claim for Interest o Avoid generic terms like "interest at the prescribed rate a tempore morae" and instead specify the exact rate and start date for interest. Intellectual Property of LawGuide  o In cases where interest accrues from a specific date (e.g., the date of demand or due date), this should be clearly detailed in the particulars of claim. o For compound interest claims, specify the rate and compounding frequency in the prayer of the claim. This summary provides an overview of the principles governing interest in claims, including how it is calculated, when it accrues, and the legal requirements for claiming it. Costs: Introduc on  Purpose of Costs: Costs are awarded to indemnify a successful party for the expenses incurred in initiating or defending litigation.  High Court and Magistrates' Courts: The High Court follows common-law principles for costs, while the Magistrates' Courts are governed by statutory rules, but the principles are similar in both. General Rules for Awarding Costs 1. Successful Party Generally En tled: Costs typically follow the event; the successful party is usually awarded costs. 2. Depriva on of Costs: The court may deprive a successful party of costs if their conduct was improper, such as making excessive demands or following incorrect procedures. 3. Par al Costs by Successful Party: A successful party may be ordered to pay a portion of the opposing party’s costs if their conduct led to unnecessary expenses. 4. A orney-and-Client Costs: In special cases, costs may be awarded on an attorney-and-client scale, either due to an agreement between parties or to reflect the court's displeasure with a party’s conduct. This is more punitive and may cover more expenses than standard costs. Costs and A orney’s Charges  Tariffs: Costs are based on tariffs in both the Magistrates' Courts and High Court, detailing fees for various tasks. Bills of costs include fees for work done and disbursements (e.g., payments to the sheriff, expert fees).  A orney’s Fees: Attorneys may charge clients according to an agreement, which can differ from the court tariffs. Fees may be based on hourly rates or a fixed quote. Attorneys may also charge on a contingency basis (no win, no fee), with specific regulations governing such arrangements. Types of Cost Awards 1. Party-and-Party Costs: These cover necessary and proper costs for attaining justice and defending rights, based on the tariff. They do not usually cover the full legal costs of the successful party. 2. A orney-and-Client Costs: This scale covers more than party-and-party costs, including some necessary additional work. It’s more generous but still follows the tariff as a base. Intellectual Property of LawGuide  3. A orney-and-Own-Client Costs: These are the costs a client pays directly to their attorney, which may include additional services agreed upon. The applicability of such awards against the opposing party is debated and has been subject to varying judicial interpretations. OTHER ORDERS COURT MAY GIVE: a. Costs de bonis propriis: Part or all of the costs must be paid by the legal representative. When attorney/guardian/ trustee conducts himself in a grossly negligent/improper manner b. Interlocutory Costs: Costs may be awarded after interlocutory proceeding but will not be taxed until after trial. c. Costs in the cause: Costs follow the successful litigant at the conclusion of the trial d. ‘No order as to costs’: No costs awarded to either side e. ‘Cost to be reserved’: No order at the interlocutory hearing –held over until the end of the case and argued for then. Intellectual Property of LawGuide Intellectual Property of LawGuide