IURI 376 Semester 2 Study unit 10: PDF

lOMoARcPSD|8037265 IURI 376 Li#ga#on Study unit 10: Short-cut judgements Overview Judgment can be obtained before the ma2er goes to trial in a default judgment or in the case of a summary judgment (used in clear cut claims). Or when there is a confession of claim or consent to judgment. Default judgement 2 Main forms of default that may result in judgment:  Default of appearance  Default of pleadings  Failure to appear in court Default of appearance:  Defendant fails to enter an appearance to defence – Magistrate’s rule 12(1)(a) and High Court rule 31(2)(a) and 31(5)(a). This is the most common situaJon resulJng in applicaJon for default judgment arises out of a defendant’s failure to deliver a noJce of intenJon to defend within the dies induciae.  PlainJM fails to appear at trial – Magistrates’ Court rule 32(1) and High Court Rule 39(3) In terms of the Magistrates’ Court rule, if the plainJM fails to appear at trial – court can dismiss acJon with costs. In terms of the High Court rule, it speciRcally refers to absoluJon from the instance and is similar to the Magistrates’ Court rule.  Defendant’s default of appearance at trial – Magistrates’ Court Rules 32(2) and High Court rule 39(1). 3 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The plainJM may apply for judgment with costs if the defendant fails to appear at trial aSer the court has heard the evidence. “The plainJM may prove his claim so far as the burden of proof lies upon him and judgment will be given accordingly, in so far as he has discharged that burden”. Added provision – where the claim is for a debt or liquidated demand no evidence shall be necessary Default of pleadings  Fails to plead – High Court rule 21(1) If the defendant has given his noJce of intenJon to defend, but failed to deliver his plea, the plainJM can serve a noJce of bar on the defendant and calls on him to deliver his plea within 5 days. Failure to do so – in default and ipso facto barred from pleading. PlainJM may apply for default judgment in terms of rule 31(2) or (5). NoJce of the applicaJon for default judgment must be served on the defendant. Defendant is only in default once the Jme period sJpulated in the noJce of bar has expired.  Fails to plead – Magistrate’s Court Rule 12(1)(b) If a defendant enters an appearance to defend, but fails to deliver a plea within the prescribed Jme limit, then the plainJM may serve a noJce of bar on the defendant. The noJce of bar will call upon the defendant to deliver a plea within 5 days from the date of receipt of the noJce, failing which the defendant will be in default of the plea and ipso facto (automaJcally) barred ThereaSer, the plainJM brings an applicaJon for default judgment against the defendant (to the clerk of the court) In the High Court, noJce of this applicaJon must be served on the defendant. In the Magistrates’ court, no noJce is required. 4 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265  Default of plainJM’s plea in reconvenJon Failure to deliver plea in reconvenJon to the defendant’s counterclaim is the same procedure as defendant’s plea  Default of declaraJon (MCR15(1) and HCR 20(1)) Same procedure as above, the claim must be for a debt or liquidated debt and will usually issue a simple summon s rather than a combined summons. if the plainJM fails to deliver a declaraJon within 15 days aSer a defendant has entered an appearance to defend, the defendant may serve a noJce of bar and if the plainJM sJll fails to deliver a declaraJon, the defendant may apply for absoluJon from the instance or, aSer adducing evidence, for default judgment. Applying for default judgment – High Court First establish if the claim is for a debt or liquidated demand, this means that is is for a Rxed, certain or ascertained amount or things. If it is, default judgment can be considered administraJvely by the registrar. If it is not for a debt or liquidated demand – the ma2er must be set down for hearing by the court and the applicaJon will be moved formally by counsel. The court needs to be saJsRed by the amount of the plainJM’s damages (quantum). The applicaJon is to be heard in moJon court (undefended matrimonial acJons – plainJM must a2end court). If the defendant fails to enter a noJce of intenJon to defend – no noJce of set- down of the applicaJon need be given to the defendant. If defendant fails to plead and ignores a noJce of bar – give noJce of set-down to the defendant at least 5 court days before hearing. If the claim is for a debt or liquidated amount – plainJM Rles a wri2en applicaJon with the registrar (obliged to do so) Defendant fails to enter a noJce of intenJon to defend – do not have to give a noJce of applicaJon to the registrar Defendant fails to plea and ignores noJce of bar – give noJce of the applicaJon to the registrar 5 court days before the applicaJon is made (noJce of intenJon to apply for default judgment). 5 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Registrar may grant judgment in whole or in part, or in amended terms or refuse judgment whole or in part, or postpone the judgment, or request oral/wri2en submissions, or require the ma2er be set down in open court. If evidence is required- request to set the ma2er down for a court hearing. DissaJsRed with direcJons/judgment of the registrar – within 20 days from acquiring knowledge of the judgment/direcJons, set the ma2er down for reconsideraJon. Costs – In MC, R200 plus sheriM’s fees. Outside MC. R650 plus sheriM’s fees. Applying for default judgment – Magistrate’s Court Rule 12 Ordinarily not heard in open court, unless it is made in respect of failure to appear at trial, when it is applied for orally from the bar. In all other cases the plainJM lodges a wri2en request (MC Form 5) for judgment by default with the clerk of the court. The request must be draSed and signed in duplicate. The original summons and sheriM’s return of service are then a2ached before it is Rled at court for an administraJve decision regarding the judgment. Liquid claims: Dealt with by the clerks themselves (they just check that the cause of acJon for the claim is disclosed in the parJculars of claim and whether there has been proper service of the summons on the defendant) A copy will be returned to the plainJM, endorsed with a stamp indicaJng that default judgment has been granted, together with the date. Unliquidated claims: These are referred to the court, which will assess the amount recoverable by the plainJM. It is not heard in open court. 6 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Placed before the magistrate who deals with the ma2er administraJvely in chambers, without any parJes being present. The court will require some form of evidence as to the nature and extent of the claim. Request for default judgment in respect of an unliquidated amount is supported by an acdavit which gives Rll details as to the manner in which the claim was quanJRed (damages acdavit). Barring Prevents the delivery of any further pleadings. AutomaJc barring – HCR 26 and MCR 21B. When replicaJon to the plea of the defendant has not been done within 15 days. NoJce of bar – HCR26 states that there is no automaJc barring in respect of pleadings that come before replicaJon. If a party wishes to obtain default judgment – serve noJce of bar. Removal of bar – HCR27 First ask the other party if they will agree to remove the bar, if they agree it is removed. If not, apply to court on noJce. The court will look at reasonable explanaJon, bona Rde delay, no reckless or intenJonal disregard to the rules of the court, the acJon or defence is not ill-founded and that the prejudice caused to the opposing party can be compensated for. Summary judgment DeRniJon The defendant does oppose the ma2er, but there is a suspicion that the only reason for the defendant’s opposiJon is to delay the ma2er. A plainJM who Rnds himself in this situaJon may a2empt to shortcut the usual procedures, and obtain judgment without having to go to trial. It tallows the court to grant a Rnal order in a defended acJon without the parJes going to trial. The purpose of the procedure is to prevent the defendant from delaying the proceedings when he has no real defence to the plainJM’s claim. Summary 7 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 judgment will only be granted if the court is saJsRed that the plainJM has a very clear case and the defendant fails to establish a bona &de defence. 2 congicJng interests that need to be balanced: - The plainJM should not be forced to suMer a delay and expense of a trial - Severe and extraordinary procedure which circumvents the audi alteram partem principle Permissible claims – Magistrate’s Court Rule 14(1) A plainJM may only apply for summary judgment together with any claim for interest and costs if his claim is: - Based on a liquid document – cheques, acknowledgements of debt and mortgage bonds - For a liquidated amount of money – a claim for a Rxed amount or thing - For a delivery of speciRed movable property – the summons must describe the property with succient parJcularity to enable it to be idenJRed - For ejectment – removal of the defendant from premises unlawfully occupied The applica#on – Magistrate’s Court Rule 14(2) Should the plainJM wish to apply for summary judgment, he must approach the court by way of noJce of moJon, within 15 days of receiving noJce of intenJon to defend If the applicaJon is not made within the 15 day period, the plainJM loses the opportunity to apply for summary judgment The applicaJon must state that the applicaJon will be set down for hearing on stated day. - That days may not be less than 10 days from the date of the delivery of the applicaJon - The plainJM will obtain the date of the hearing from the registrar before serving the applicaJon on the defendant 8 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 If the defendant responds by an acdavit, this should be delivered by noon, two days before the hearing. If the ma2er is not dealt with by the parJes agreeing to the usual order, arguments will be heard at the hearing. The suppor#ng aOdavit The noJce of applicaJon must be supported by an acdavit depose to by the plainJM himself, or by any other person who is able to swear posiJvely to the facts. The deponent must go further and state that the facts are within his personal knowledge. Where no single person has personal knowledge of the facts, acdavits by more than one person are required. If the acdavit is deposed to by someone in representaJve capacity, the acdavit should state that he has been duly authorised an this authorisaJon needs to be obtained The person making the acdavit must: - Verify the cause of acJon and amount claimed - State that in his opinion there is no bona Rde defence to the acJon and - State that noJce of intenJon to defend has been delivered solely for the purpose of delay Responding to an applica#on for summary judgment – Magistrate’s Court Rule 14(3) and HCR 32(3) The defendant has two opJons upon receipt of the noJce of applicaJon for summary judgment: - Give security to the plainJM to the saJsfacJon of the registrar for any judgment, including costs, which may be given This only applies to money claims, or where a claim is supported by a money claim in the alternaJve. If the defendant adopts this course of acJon, the applicaJon for summary judgment will be defeated, and the acJon will proceed as normal. Security may be given by way of a bond of security obtained from a Rnancial insJtuJon, or else the defendant’s a2orneys may stand surety. 9 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 - SaJsfy the court by acdavit, or with leave of the court, by oral evidence, that he has a bona Rde defence to the acJon. The acdavit or oral evidence must disclose fully the nature and grounds of the defence and the material facts relied upon for the defence If the usual order is not agreed to (proceed to trial and give up applicaJon), the parJes will give argument at the hearing: - Argument limited to whether the defendant has failed to disclose a bona Rde defence in the acdavits - The court looks to see whether the defendant’s version (if true) would amount to a valid defence to the claim (not whether it is more probable). - The courts are cauJous and conservaJve in granJng summary judgment because the procedure infringes against the audi alteram partem rule - If security is put up and he saJsRes the court that he has a valid defence, the court will grant him leave to defend the ma2er and it will proceed to trial, otherwise the court has a discreJon to grant summary judgment against the defendant in the plainJM’s favour. The usual order  Summary judgment refused  The defendant granted leave to defend and  Costs to be reserved If prior to the hearing, the plainJM’s a2orney is saJsRed that the defendant’s acdavit discloses a defence, he might consent to the usual order Special order for costs Court makes cost order that it deems to be just. If applicaJon for summary judgment is opposed and refused – cost order awarded usually ‘in the cause’ (court’s discreJon). Summary judgment granted – costs of the applicaJon will be awarded to the plainJM. AlternaJve to this – parJes agree to the usual order (or alternaJve route stated in HCR/MCR) 10 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 When the applicaJon does not fall in the categories listed in the rules/plainJM knew the defendant was relying on a contenJon which enJtled him leave to defend – court can order the acJon should be stayed unJl aSer the plainJM paid the defendant’s costs. Consent and confession to judgment – Judgment on confession in the HC – rule 31 Defendant may at any Jme confess to judgment in respect of whole/part of the claim in the summons. ExcepJons: - Not allowed in terms of the Divorce Act - claiming nullity of marriage Preferred that at least one party must be present PlainJM confesses by signing a wri2en confession to judgment. The confession must (Rule 31(1)(b)) 1. Be signed by the defendant personally 2. The defendant’s signature must either a. Be witnessed by his a2orney (not the acJng a2orney) b. Be veriRed by an acdavit deposed to by the defendant himself ASer signed – confession to judgment is delivered to the plainJM. HCR 31(1) – plainJM may apply in wriJng through the registrar for judgment (noJce not needed). Judge decides in chambers whether or not to grant the judgment. Can’t withdraw consent aSer it has been given. If claim based on single cause of acJon and defendant confesses to judgment in part, then the plainJM cannot obtain judgment in accordance with the confession – must proceed to separate acJon. (Defendant will raise res judicata) In pracJce – defendant pays in instalments and plainJM does not take acJon unless the defendant defaults in a payment. Status of the judgment is unaMected by the agreement. 11 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Magistrate’s Court Rule 11 A defendant has 3 opJons if he wants to consent to judgement before he has entered an appearance to defend the ma2er: - Signing the consent included in the summons when the SheriM serves it on him - DraS his own consent (signed personally by himself and 2 witnesses with addresses of witnesses) - Signing the consent to judgment which will be included in his copy of the summons, and lodge it with the clerk or registrar of the court - Rule 11(4): - A defendant may consent to judgment aSer he has entered an appearance to defend a ma2er by draSing his own consent to judgment, which must be similar to consent to judgment appearing in the summons - The consent needs to be signed by himself or his a2orney The defendant avoids the judgement costs that might be incurred by an applicaJon for default judgment The defendant will have judgment taken against him Consent to judgment not allowed in terms of Divorce Act 70 of 1979 12 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 IURI 376 Li#ga#on Study unit 11: Ac#on procedure Introduc#on There are 8 steps involved when it comes to pre-trial procedures: 1. Semng the ma2er down for trial 2. The discovery process – revealing documents and evidence for inspecJon 3. Technical and medical examinaJons 4. Obtaining further parJculars for trial 5. Having the necessary subpoenas issued for witnesses 6. Arranging for special evidence like in the case of expert witnesses 7. Arranging and pre-trial conference 8. Final preparaJon for trial These steps involve preparing the case for trial aSer li+s contesta+o. The procedures are all aimed at allowing the trial to run smoothly, avoiding adjournments and delays, and encouraging se2lement by allowing both sides to have insight into the case which is being prepared by their opponent. Trial preparaJon that is done negligently can lead to adverse trial cost and losing the case or the judge’s favour. Step 1: Set down The close of pleadings are dictated by Magistrate’s Court Rule 21A and High Court Rules 29. In the Magistrate’s court: Only one noJce of set down is delivered, both requesJng a trial date, and informing the defendant that the ma2er has been set down for trial on a parJcular date. 13 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The plainJM must deliver this noJce of set down to the defendant within 15 court days aSer the pleadings have closed (liJs contestaJo) The clerk of the court assigns a court day on receipt of the noJce, and endorses the noJce with the trial date, before returning the noJce to the plainJM for service on the defendant. 20 court days must elapse from the date on which the noJce of set down is delivered to the date on which the trial begins. The noJce of set down operates to set down simultaneously for trial any counterclaim brought by the defendant. If the plainJM does not deliver the noJce of set down within the 15-day period, the defendant may set the ma2er down for trial by delivering the required noJce. The defendant will do this if he has brought a substanJal counterclaim against the plainJM and wished to proceed trial. In the High Court: ASer pleadings close, the ma2er must be set down for trial. The plainJM has the right to apply for set down (dominus liJs). Each division of the High Court has its own rules for set down. Step 2: Discovery and related procedures Purpose of this step: To allow each party knowledge of, and eventual access to, documents in the possession of the opposing party that might be relevant to the trial. Each party then knows which documents are in existence that may assist his case or his opponent’s. This prevents parJes from being taken by surprise, eliminates dispute about issues where the evidence is inconverJble, and secures the fair trial of the acJon in accordance with the due process of the court. The liJgaJon process is meant to be transparent. 14 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Discovery procedures NoJce to discover When must discovery take place? Governed by Magistrate Courts Rule 23(1) and (2). Prompted by a noJce to discover served on a party by the opposing party. The discovery should occur under oath and the lists or schedules of the documents a party discovers are annexed to a discovery acdavit. A discovery acdavit must be delivered within 20 court days of the receipt of a noJce to discover from the opposing party. Unless leave of a magistrate is Rrst obtained, discovery may not be requested before the close of pleadings. If a party fails to call for discovery, the acJon will reach a point at which the opposing party will be obliged to deliver a discovery acdavit to the other party without the prompJng of a noJce. High Court Rule 37(1) allows for automaJc discovery, meaning that even if the parJes have not speciRcally requested discovery, they sJll must do so. There is no corresponding rule like this in the Magistrate’s Court Rules. If a party has not discovered by the Jme her receives noJce of the trial date, he must deliver his discovery acdavit to the other side within 15 court days. What must be discovered? A noJce to discover contains a request for the opposiJon to discover on oath:  All documents and tape recordings which relate to any ma2er in quesJon in the acJon  Which the other side have in their possession or control when the noJce is delivered, or which they have at any Jme in the past had in their possession or control. 15 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Tape recording includes:  A sound track, Rlm, magneJc tape, record or any other material on which visual images, sound or other informaJon can be recorded. Including compact disks, hard drives, video tapes etc. (HCR 35 and MCR 23) This includes documents and tape recordings that are currently in a party’s possession or control or have been in their possession or control in the past. A party may not limit his discovery to the documents and tape recordings he intends to use in support of his case at trial, or merely to those favourable to his case. - All documents which relate to any ma2er in quesJon in the acJon must be discovered, whether they help or hinder a party’s case - The purpose of this is to establish complete transparency and avoid the liJgaJon dragging on for no good reason. A document will be relevant if it contains informaJon that might directly or indirectly advance a party’s case or damage that of his opponent. It will be indirectly relevant if the informaJon may fairly lead a party to a train of enquiry that may advance his case or damage that of his opponent. The opposing party is not enJtled to inspect privileged documents – they do not for part of the discovery acdavit. What must not be discovered? Magistrate’s Court Rule 23(2)(C) - Witness statements taken for purposes of the proceedings - A2orney and client communicaJons - Pleadings, acdavits and noJces in the acJon (court Rle) The discovery acdavit – Magistrate’s Courts Form 13 and High Court Form 11 First schedule Documents and tape recordings which are in the possession of the deposing party at the Jme the discovery acdavit is deposed to. First schedule is divided into two parts: 16 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 - Documents and tape recordings that the deposing party has no objecJon to being inspected by the opposiJon. - Documents and tape recordings which the deposing party objects to being inspected by the opposiJon because they are privileged on the basis of the rules of evidence. Following privileges exist: 1. Privilege against self-incriminaJon (implicaJng party in criminal oMence) 2. Marital privilege (wri2en by one spouse to another spouse) 3. A wri2en oMer made without prejudice with the intenJon of se2ling a ma2er 4. Legal professional privilege (a2orney-client document) Second schedule  Documents and tape recordings which were in the possession of the deposing party at one Jme, but are no longer in the possession of that party  For example, original copies of all le2ers dispatched by the deposing party Documents should be listed in chronological order, individually, iniJalled and consecuJvely numbered, or labelled as ‘bundle of documents’ of a special nature. High Court Rule 35(2) and Magistrates’ Court Rules 23(2)(c) list documents that must not be a2ached to a discovery acdavit: 1. Statements of witnesses taken for the purposes of the proceedings 2. CommunicaJons between a2orney and client and between a2orney and advocate 3. Pleadings, acdavits and noJces in the acJon 17 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Remedies for failure to discover NoJce to inspect undisclosed documents – Magistrate’s Court Rule 23(3) and High Court Rule 35(3) A wri2en noJce must be delivered to the opposing party in which the party is required either: - To make the undiscovered documents or tape recordings (or copies of them) available for inspecJon - To state on oath within 10 days that such documents are not in his possession, in which event he shall state their whereabouts if known to him Document or tape recording may not be used – Magistrate’s Court Rule 23(4) and High Court Rule 35(4) - The party not, save with the leave of the court, use the undiscovered document or tape recording for any purpose at the trial - The opposing party is enJtled to use that document or tape recording at the trial ApplicaJon to compel discovery – Magistrate’s Court Rule 23(8) and High Court Rule 35(7)  Should a party fail to discover, his opponent may make an applicaJon to court to compel discovery.  At the hearing of the applicaJon to compel discovery, the court will order the uncooperaJve party to deliver a discovery acdavit before a certain date  If the discovery acdavit it not delivered by that date, a further applicaJon may be made to court to dismiss the claim or strike out the defence of the uncooperaJve party  No noJce before making an applicaJon is necessary NoJce to inspect – Magistrate’s Court Rule 23(6) and High Court Rule 35(6) - One party may deliver a noJce to another party, requiring that party to produce for inspecJon any of the documents or tape recordings which that party has discovered in his discovery acdavit. NoJce must be in accordance with form 13 (HC) and form 15A (MC) 18 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 - The party upon whom the noJce to produce for inspecJon is served, has 5 court days within which to deliver a noJce to inspect documents, which is essenJally a reply to the noJce to produce for inspecJon - The noJce to inspect documents must state a Jme, which is within 5 court days aSer delivery of the noJce, when the documents or tape recordings listed in the noJce to produce for inspecJon may be inspected - The inspecJon must take place at the occe of the a2orney represenJng the party sending the noJce, or, if that party is not represented, at a convenient place out in the noJce - The party receiving the noJce to inspect documents will be enJtled to inspect the documents and tape recordings for a period of 5 court days from the Jme sJpulated in the noJce – he may inspect the documents on any one or more of such days during normal business hours, and may make copies or transcripJons of them - If a party fails to produce a parJcular document or tape recording for inspecJon, then that party will not be permi2ed to use it at the trial unless he convinces the court that there was good cause why the document or tape recording was not produced NoJce to specify – Magistrate’s Court Rule 23(9) and High Court Rules 35(8) A party to an acJon, may, aSer liJs contestaJo, give noJce to any other party to specify in wriJng; parJculars of dates and parJes of or to any document or tape recording intended to be used at the trial of the acJon on behalf of the party to whom noJce is given. The party receiving noJce to specify must, not less than 15 court days before trial, deliver a noJce to the party who sent the noJce to specify, in which he: - SpeciRes the dates of, and parJes to, and the general nature of, any documents or tape recordings which are in his possession and which he intends to use at the trial of the ma2er and - SpeciRes any parJculars whereby those documents or tape recordings which are not in his possession and which he intends to use at the trial of the ma2er, may be idenJRed, as well as the name and address of the person in whose possession such documents and tape recordings are 19 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 NoJce to produce – Magistrate’s Court Rule 23(11) and High Court Rule 35(10) A party may oblige another party to produce the original of a discovered document at the hearing of the ma2er. The reason: the party wishes to use the document or tape recording in support of his own case. A party is then enJtled, at the trial, to hand in the document or tape recording, without calling any witnesses. A noJce to produce may not be used to obtain documents currently in possession of third parJes that have been discovered for the reason that they were once in the possession of the party making the discovery. NoJce to admit – Magistrate’s Court Rule 23(10) and High Court Rule 35(9) Generally for a document to form part of the evidence at trial, a witness who has knowledge of the document, and who is able to idenJfy it for the court must introduce the document. The above rule provides a procedure to avoid this. One party may call upon the other party to admit that certain documents or tape recordings were properly executed and are what they purport to be. A noJce to admit is served on the opposiJon, who then has 10 court days to make up his mind. Unless the party to whom the noJce was sent speciRcally states that the documents are not admi2ed, the party who sent the noJce is enJtled to produce documents speciRed in the noJce at the trial without having to prove them. This rule is useful when documents are in the hands of third parJes such as municipaliJes. Step 3: Medical examina#ons and technical inspec#ons Medical examinaJons – claim for bodily injuries: Magistrate’s Court Rule 24 and High Court rule 36 20 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Use by a defendant who is being sued for damages for personal injuries suMered by the plainJM. It involves an examinaJon of the plainJM by a suitable medical pracJJoner. The purpose of the procedure is to enable the defendant to ascertain the extent and severity of the plainJM’s injuries, fort the purpose of assessing whether or not the quantum (value) of the plainJM’s claim is reasonable Arranging the examinaJon (HCR36(1)) Any party to proceedings in which damages or compensaJon in respect of alleged bodily injury is claimed, has the right to require any party claiming such damage or compensaJon, whose state of health is relevant to the determinaJon of such damage or compensaJon, to submit to a medical examinaJon. A party claiming damages as the result of the death of another person may also undergo a medical examinaJon where his medical condiJon is relevant to determining the damages. The damages in a loss of support claim are determined by an actuarial assessment, based on the ability to work and the life expectancy of the claimant. Any party requiring another party to submit to such examinaJon shall deliver a noJce specifying the nature of the examinaJon required, the person by whom, the place where and the date (not less than 15 days from the date of such noJce) and Jme when it is desired that such examinaJon shall take place. - NoJce shall state that such other party may have his own medical adviser present at such examinaJon - The noJce is usually delivered aSer close of pleadings in preparaJon for trial ObjecJng to the examinaJon The party who is being requested to submit to the examinaJon may, within 5 court days of receiving noJce of the proposed examinaJon, object to the examinaJon on the following grounds as contained in Magistrate’s Court Rule 24(3)(a) and High Court Rule 36(3): 21 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 1. Nature of proposed examinaJon 2. The person(s) by whom the examinaJon is to be conducted 3. The place, date or Jme of the examinaJon (must give alternaJve opJons) 4. The amount of the expenses tendered to him Should the party fail to object within the 5-day period, he is deemed to have agreed to the examinaJon. Where the objecJon is made and the party who has delivered the noJce demanding the examinaJon regards the objecJon as unfounded, he may, on noJce, make applicaJon to a judge to determine the condiJon upon which the examinaJon is to be conducted Report on the examinaJon The party calling for the examinaJon must ensure that a full wri2en report is compiled by the person who carries out the examinaJon The report must detail the results of the examinaJon, as well as the opinions formed by the person who conducted the examinaJon A full copy of the report must be made available to any other party to the ma2er who requests it Other medical reports, records and X-rays A party may require the party who is claiming the damages to make available any medical records, hospital records, X-rays, or similar documentary informaJon, which is relevant to the assessment of such damages The request is made by way of a noJce in wriJng, and the documents must be delivered within 15 days in the MC and 10 days in the HC. Technical inspecJon – claim to relaJng to object Movable and immovable property May only be required of a party that has the object in his possession or under his control, and not if the object is under the control of a third party 22 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Arranging the inspecJon The party requesJng it must give wri2en noJce to the party in possession of the object, requiring him to make available for inspecJon within 15 days before the hearing. In the HC, the party requiring inspecJon must give noJce to the party in possession of the object and be available for inspecJon during a period of 10 days. ObjecJng to the inspecJon If the inspecJon or examinaJon will aMect the object, causing material prejudice (destroyed, damaged or its value reduced) to the party who is being asked to submit it, then that party may refuse to submit it Report on the inspecJon The person who carries out the inspecJon or examinaJon is required to complete a wri2en report, which the party who caused the inspecJon or examinaJon to be made, must furnish to all parJes on request Step 4: Request for further par#culars for trial – Magistrate’s Court Rule 16 ParJculars strictly necessary to enable the party requesJng them to prepare for trial Purpose: - To prevent any surprises at trial - To inform a party with precision, what the opposing party is going to prove in order to enable him to prepare his case Does not include a2empJng to Je the other party down to unfairly limit their case. Two important points: 1. All facta probanda relaJng to the claim and defence should be known at this stage 23 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 2. Discovery and examinaJon procedures will allow the requesJng party to obtain details about the evidence that will be presented at trial (facta probanJa) The procedure: Magistrate’s Court Rule 16(2)(a) and High Court rule 21(2) Any party to an acJon may, aSer close of pleadings and not less than 20 court days before the trial, deliver a noJce requesJng further parJculars The request is signed by an a2orney or a party who is represenJng himself The party asked to furnish further parJculars, must do it within 10 days of receiving the request, failing which the party requesJng it may make an applicaJon to court to compel delivery A party who requests further parJculars which are not strictly necessary to enable the party to prepare for trial, may be punished by an adverse order as to costs.Rules 21(5) and 16(5) of the High Court and Magistrates’ Courts Rules, respecJvely, clearly seek to discourage ‘Rshing expediJons’. Step 5: Subpoena of witnesses A method a party uses to obtain the a2endance of a witness at court Subpoenas in the High Court – normal subpoena Rule 38 of the HCR read together with secJon 35 of the Superior Courts Act. First draw up a subpoena in line with form 16 of the Rrst schedule of the High Court Rules. ThereaSer it is used by the registrar and served on the witness. Any party in a ma2er that is to be tried before the court has a right to have a subpoena issued and served on any witness believed to be in a posiJon to give evidence. Subpoena draSed in accordance of form 16 informs the witness of when, where and on whose behalf he is required to give evidence 24 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Subpoena duces tecum Rule 38(1)(a) - A witness may be required to bring with him to court any deed, instrument, wriJng or thing that is sJpulated in the subpoena Method by which a party is able to obtain access to documents or items of physical evidence that may be important to his case, when these items are in the possession of persons who are not important to his case, when these items are in the possession of persons who are not parJes to the case. It supplements the discovery and examinaJon procedures. A witness who claims that the document in quesJon is privileged must sJll comply with the subpoena but must saJsfy the registrar that his claim of privilege is legally jusJRed. HCR 38(1)(b) - The person must hand over the deed, wriJng, document or tape recording to the registrar as soon as possible aSer he receives the subpoena. Failure to comply with a subpoena Fine of R300, or 3 months imprisonment. SecJon 35 of Superior Court Act sets out consequences if: 1. Either to come to court or to remain at court in compliance with the provisions of a valid subpoena 2. Fails to produce any document in accordance with a valid subpoena duces tecum 3. Deliberately evades service of the subpoena Consequences if a witness fails: - Come to court or remain at court in compliance with the provisions of a valid subpoena or - Fails to produce any document or thing in accordance with a valid subpoena duces tecum or - Deliberately evades service of the subpoena A court may issue a warrant for the arrest of such a witness. In certain cases a witness is enJtled to fees to cover cost of travelling to court. 25 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 - A cheque for these fees must be included with the subpoena - If not, and the witness fails to arrive at court, the court will refuse to issue a warrant for the arrest of the witness Points to keep in mind to ensure the court will be able to deal eMecJvely with the witness if that witness fails to obey the subpoena: - It must be properly served by the sheriM - It should not be served too close to the trial date because the witness is enJtled to a reasonable noJce - All the witness fees due to him should be paid to him or oMered to him in the subpoena - The document or thing must be succiently parJcularised in the case of a subpoena duces tecum Subpoenas in the Magistrate’s Court – Magistrate’s Court Rule 26 and sec#on 51 of the Magistrate’s Court Act Subpoenas duces tecum – Magistrate’s Court rules 26(3) Magistrate’s Court Rule 26(4) – subpoena must be accompanied by as many copies as there are witnesses to be summoned, together with their conduct money in each case. Magistrate’s Court Rule 26(5) – a magistrate may set the service of a subpoena aside if it appears that the witness was not given reasonable Jme to enable him to appear SecJon 51 bis of the Magistrate’s Court Act: Witness fees in the Magistrate’s Court. A witness can be put in jail for 8 days at a Jme if he is diccult by not answering quesJons. 26 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Step 6: Special Evidence Expert evidence – Magistrate’s Court Rule 24(9) and HCR 39(9) No obligaJon on a party to reveal the nature and content of the oral tesJmony that their witnesses will deliver in court ExcepJon: Expert evidence Such evidence is necessary when a court lacks the specialist knowledge which is essenJal to enable it to decide certain issues in the ma2er A party intending to call an expert must do 2 things: - Not less than 15 court days before the hearing, deliver a noJce of his intenJon to call an expert - Not less than 10 court days before the hearing, deliver a summary of the expert’s opinion, which must include his reasons for that opinion Any party failing to comply with these requirements will not be enJtled to lead the evidence of the expert witness unless the court grants leave to do so, or all parJes to the ma2er give their consent The raJonale for this rule is to allow the opposing party to prepare himself to counter the expert’s tesJmony (usually by calling his own expert) Without this rule, the opposiJon would be taken by surprise, and would be forced to request an adjournment in order to obtain his own expert evidence. It also allows experts to exchange reports and views, and to eliminate unnecessary points of dispute between themselves The summary of the expert indicate - The expert’s qualiRcaJons and experience - The facts and data on which the opinion is based - The process of reasoning used to arrive at the opinion and - The expert’s reasoned conclusions 27 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Photographs, plans, models and diagrams High Court Rule 36(10) Purpose of this rule: - Without giving noJce to the opposiJon – may not use the plan/diagram or model - To obtain consent for the admission of evidence without proof, meaning, if it is allowed, they admit: o The diagram/plan/model is authenJc o Physical features were present when it was drawn/made or taken If the opposiJon refuses to admit the plan, model or diagram by giving noJce within 10 days, it will have to be proved at trial. Magistrate’s Court Rule 24(10) No person shall, save with the leave of the court or consent of all parJes, be enJtled to tender in evidence any plan, diagram, model or photograph unless he shall not less than 10 days before the hearing, have delivered a noJce staJng his intenJon to do so, oMering inspecJon thereof and requiring the party receiving noJce to admit the same within 5 (in the HC – 10 days) days aSer receipt of noJce. Evidence on commission High Court Rule 38(3) ApplicaJon made aSer close of pleadings when issues have been deRned and necessary evidence is clear. Party applying must prove it is convenient or necessary for the purposes of jusJce to order the taking of evidence before a commissioner. Issues to consider: - Inability of a witness to a2end court - Likelihood of evidence being lost - Relevance - Materiality 28 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 SecJon 53 of the Magistrate’s Court Act The court appoints a commissioner, who will go and take the evidence of the witness in the form of a deposiJon, which will be handed in as evidence at the trial Evidence by means of interrogaJon High Court – secJon 40 of the Superior Courts Act Party in a HC acJon is enJtled to apply to court for leave to examine a witness who resides, or is for the Jme being outside the area of jurisdicJon by means of interrogatories (see deRniJon below). If applicaJon is granted, quesJons will be transmi2ed to a commissioner of the court, who will put the quesJons to the witness and record the answers. These answers are sent to the registrar and received and evidence. SecJon 52 of the Magistrate’s Court Act InterrogaJons are a set of quesJons, which are drawn up by the parJes and submi2ed to the court for approval, then sent to the commissioner who puts them to the witness. No representaJon or cross-examinaJon by the parJes. It is only permi2ed in respect of witnesses who reside or are in a district other than that in which the case is being heard. Step 7: Pre-trial conference High Court rule 37 Pre-trial conference must be held no less than 6 weeks before trial to curtail the proceedings as much as possible. ASer plainJM receives noJce of trial date – within 5 days deliver noJce to defendant specifying Jme, date and place for the conference. Failure to do so – aSer 30 court days the defendant can sJpulate the details of the conference. 29 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Not less than 10 court days before the conference – parJes deliver agenda for the conference that contains the admissions, enquiries and any other ma2ers relevant. The conference is held between the advocates and a2orneys, and the clients are not present. Immediately aSer the conference – plainJM’s a2orney prepares a rule 37 minute (record of proceedings and decisions reached). All parJes present must sign the minute. List of things to be included in the minute: 1. The place, date and duraJon of the conference and the names of the persons present; 2. If a party feels that he is prejudiced because another party has not complied with the rules of court, the nature of such noncompliance and prejudice must be recorded; 1. That every party claiming relief has requested his opponent to make a se2lement proposal and 2. that such opponent has reacted thereto; 3. Whether any issue has been referred by the parJes for mediaJon, arbitraJon or decision by a 4. 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 producJon of proof by way of an acdavit in terms of rule 38(2); 10.Which party will be responsible for the copying and other preparaJon 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. ASer this has been prepared – circulate between the parJes and if they agree they sign. 30 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Costs orders can be made against a party or his a2orney if they did not a2end the pre-trial conference or failed to promote the eMecJve disposal of the liJgaJon. Magistrate’s Court Rule 25 SecJon 54 of the Magistrate’s Court Act Not compulsory to hold a pre-trial conference before the trial of a Magistrate’s Court acJon. Only held if the court decided suo moto (on its own record) to order it, or if one of the parJes makes a wri2en request to this eMect. The conference may be ordered or requested at any stage of proceedings. Issues dealt with at such conferences are: - SimpliRcaJon of the issues - Necessity or desirability of amendment to the pleadings and - The limitaJon of the number of expert witnesses Step 8: Final prepara#on for trial 1. Advice on evidence 2. Case-gow management 3. PreparaJon of trial bundles 4. Indexing and paginaJng the court Rle 31 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 IURI 376 Li#ga#on Study unit 12: Trial Introduc#on At the trial, allegaJons in the plainJM’s parJculars of claim and the responses to these allegaJons are supported by evidence that both parJes deduce (evidence determined by the pleadings). Court rules set out the procedures to be followed during a trial, however the nature of evidence and manner of delivery is governed by the rules of evidence. (our courts follow the adversarial style with a passive judge acJng as umpire). This can be varied at the court’s discreJon. Unless it is a special case, all court proceedings are held in open court (open to the public). The issues raised in pleadings are given substance through the leading of evidence. The standard proof required in a civil trial is on a balance of probabiliJes (i.e the more likely version of events will be successful). Trial in the High Court Governed by HCR 39 (procedure), however the court can vary procedure based on rule 39(20) Par#es not present May lead to default judgment being taken against the party who fail to appear at the trial. Rule 39(2) - A defendant who has been barred from pleading and who has failed to have the bar liSed, may not, 32 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 without the special permission of the court, appear at the trial in order to defend the ma2er. Open court – Sec#on 32 of the Superior Courts Act Does not mean that proceedings may be televised. JusJce should be seen to be done. Special case ma2ers (embarrassment and prejudice to a witness) may be heard in camera with the public and press excluded. Special cases are depending on circumstances. Always look at what is the proper administraJon of jusJce. Recalcitrant witnesses SecJon 36 of the Superior Courts Act – deals with witnesses who refuse to give evidence/produce documents. If a witness: 1. Refuses to take the oath/make acrmaJon 2. ASer taken oath/made acrmaJon, refuses to answer quesJons 3. Refuses or fails to produce any document or thing which he is required to produce without reason – court can adjourn the ma2er for 8 days and commit the recalcitrant witness to prison for the given period Step 3 can be repeated unJl the witness gives what is expected/required of him/her. Duty to begin At the start of the trial, the parJes may request the court to hear the argument and make an order as to which of the parJes is under the obligaJon to adduce evidence Rrst. 33 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The general rule is that the plainJM is obliged to adduce evidence Rrst because the overall onus is on him to prove his case on a balance of probabiliJes. There is a second evidenJary burden which places a duty on a party to combat a prima facie case made by the opposing party. Necessary to examine the admissions in the pleadings to ascertain where the evidenJal burden lies. In certain cases, there may be a number of issues involved in a ma2er, with the onus to adduce evidence in respect of certain of those issues being on the plainJM, and in respect of the rest of the issues the burden being on the defendant. Opening address At the start of the trial, the party upon whom the burden of proof rests may briegy outline the facts he intends to prove. The opening address is a sober summing up for the beneRts of the judicial occer of the issues to be addressed. Counsel should take the court through the pleadings, explaining what the case is about and lisJng the averments that must be proven. Not a big dramaJc thing such as on TV. Plain#\’s case Party with the duty to begin (usually plainJM) will lead to witnesses who are able to give evidence in support of his case (evidence-in- chief). High Court Rule 39(8) – witnesses can be examined, cross-examined or re-examined by one advocate for each party (does not have to be the same party) 34 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 All witnesses remain outside the court while the evidence of other witnesses is being led. Defendant will cross-examine the witness in order to put the other party’s version to him, probe inconsistencies and to show any weakness in the evidence. PlainJM re-examine the witness to clear up discrepancies (no fresh ma2er may be raised). The court can with the consent of both parJes call a witness and at any Jme party, recall a witness for further examinaJon. PlainJM closes his case. Applica#on for absolu#on from the instance ASer all the evidence for the plainJM has been led, the plainJM’s case is closed. The defendant may decide to apply to the court, without leading evidence, for absoluJon from the instance. He may do this leading evidence and there is no obligaJon on the defendant to adduce evidence if the plainJM has failed to discharge the overall onus by the end of his case. If the court grants absoluJon from the instance, the case comes to an end. The plainJM may oppose the applicaJon of the defendant. The test the court will apply in deciding whether or not to grant to absoluJon from the instance. Whether or not the plainJM has succeeded in adducing succient evidence upon which a reasonable person might Rnd in his favor. 35 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The evidence that the plainJM has adduced must be especially gimsy. AbsoluJon of the instance will be refused if there are several reasonable inferences or possibiliJes arising out of evidence. Defendant’s case If the defendant’s applicaJon for absoluJon from the instance at the end of the plainJM’s case is refused (or if he did not make such an applicaJon in the Rrst place), he is obliged to open his case. If he is convinced that the plainJM has not managed to adduce succient evidence to prove his claim on balance of probabiliJes, the defendant may close his case immediately without leading any evidence at all. In most cases, the plainJM will have succeeded in construcJng enough of a case to require an answer from the defendant. Evidence will have to be led on behalf of the defendant to counter the allegaJons made by the plainJM. He will Rrst address the court on what it is intended to be proved in his defense, and thereaSer he will lead witnesses in his defense. There is no order for absoluJon from the instance where the burden of proving some of the issues was on the defendant. It will sJll be necessary for the defendant to lead evidence to rebut the onus on him. Closing address Rule 39(10) of HCR – plainJM or one or more of the advocates on his behalf may address the court, then the defendant does the same and aSer one plainJM or advocate may reply to any ma2ers that arise out of the defendant’s closing. 36 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The plainJM addresses the court, going through the evidence, showing what has been proven, discussing the performance of the various witnesses (credibility, reliability) and weighing up the probabiliJes in the case. Defendant addresses the court with the same aims. The plainJM addresses any fresh ma2er arising out of the defendant’s address. The court usually reserves its judgment. Once the court is ready to hand down judgment, the parJes will be informed of the date on which judgment is to be given. Reopening the case Once a party’s case has been closed, it may not be reopened without the permission of the court. Although the court may permit the reopening of a case at any Jme before judgment, the longer the trial progresses, the more reluctant the court will be to grant such permission. Party wishing to re-open his case must show that: He used proper diligence to procure his evidence for the trial. He must show that evidence has emerged which was not available or could not be obtained before he closed his case or If the evidence was available and obtainable, he must give acceptable explanaJon as to why it was not adduced before he closed his case. 37 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The evidence proposed to be led is material and likely to weighty. Factors taken into account by the court in deciding whether or not to grant leave to a party to adduce further evidence when the case is closed: - The reason why it was not Jmeously - The balance of prejudice and - The stage that the liJgaJon has reached Inspec#ons in loco The court, together with the parJes and their legal representaJves, will take a trip to the place where the alleged of acJon in the parJcular ma2er arose, and will conduct and inspecJon in loco. Also, to view pieces of real evidence that cannot be transported to court. When the judge present – judicial inspecJon. May be applied for by either party at any Jme during the trial, and the court has discreJon to grant or refuse this applicaJon. Court itself may decide that it wishes to conduct an inspecJon in loco Interpreters When a witness is not succiently conversant with the language, court interpreters are enrolled to translate quesJons put to the witness, and their answers. They take oath to interpret faithfully and to the best of their ability 38 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Reference to a referee – sec#on 38 of the Superior Courts Act Certain ma2ers may be referred to a referee for enquiry and report: - Any ma2er which requires extensive examinaJon of documents or scienJRc, technical or local invesJgaJon which in the opinion of the court cannot be conveniently conducted by it - Ma2ers relaJng to accounts or in part to accounts or - Any other ma2ers arising Used in highly technical ma2ers, the expert referee conducts an enquiry and produces a report. Court can adopt the report in whole or in part. - Once adopted, the report becomes the court’s own Rndings in the ma2er Trial in the Magistrates’ Court – MCR 29 Li2le diMerence between the HC procedure and the MC procedure. SecJon 5 of Magistrates’ Courts Act – trial must take place in open court. Rule 29(1) – trial should take place at the courthouse where the summons was issued unless indicated otherwise. Rule 29(3) – deals with the opening address of each of the parJes. Before starJng – briegy state issues of fact or quesJons of law. Rule 29(4) – to speed up liJgaJon, the court can deal separately with one issue in the ma2er. 39 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Rule 29(5) – if the parJes agree upon the facts and the dispute is a quesJon of law, the court can make a judgement without hearing evidence. Rule 29(11) – if a party that has closed his case wishes to lead further evidence, the court will take into account the following: 1. The reason why it was not led Jmeously; 2. The degree of materiality of the evidence; 3. The balance of prejudice; 4. The general need for Rnality in judicial proceedings; and 5. The stage that the parJcular liJgaJon has reached. Rule 29(12) – further examinaJon Rule 29(14) – closing addresses Recalcitrant witnesses – secJon 51 of the Magistrates’ Court Act 40 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 IURI 376 Li#ga#on Study unit 13: Judgments, interests and costs Introduc#on At the close of a trial, a court makes a decision based on the law and the evidence presented. A judgment: Decision of the court in response to the relief claimed in an applicaJon A order: Decision of the court in response to the relief claimed in an applicaJon or other procedure (interlocutory hearing). Two funcJons of a judgment: a) It is a command to the party at which it is aimed b) It regulates the legal relaJonship between the parJes and se2les their rights and obligaJons Judgment in the High Court No provision in the High Court Rules or Superior Courts Act that directly relates to judgment following a trial. Authority to grant judgments stems from common law. However, in Magistrates’ Courts it stems from secJon 48 of the Magistrates’ Courts Act. 41 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Possible judgments Judgement at the close of the plainJM’s case Defendant enJtled to pay for absoluJon from the instance at this stage. AcJon is dismissed, for the judgment is not entered for either the plainJM or the defendant. The plainJM must insJtute a fresh acJon against the defendant if he sJll wishes to pursue the ma2er once absoluJon from the instance has been granted. Procedure: defendant/representaJve addresses the court, plainJM/representaJve answers and the defendant/representaJve replies. Court will only grant absoluJon from the instance if the plainJM has not managed to adduce the succient evidence upon which a reasonable person might Rnd in favour of the plainJM. Credibility will usually not play a factor. Judgment at the close of the defendant’s case Usually the court will reserve judgment in order to give the judge Jme to consider the ma2er properly Once the judge has considered the ma2er, parJes will be informed of the date on which judgment will be delivered. Court may hand down one of three judgments: 1. Judgment for the plainJM and costs 2. Judgment for the defendant and costs 3. AbsoluJon from the instance and costs Judgement at the close of the defendant’s case – depends on how the parJes discharge the onus. Overall, the onus rests on the plainJM to prove his case on a balance of probabiliJes. If the defendant has convinced the court that the balance of probabiliJes favours his version of events, the court will grant judgment in his favour. 42 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Failure to do so will result in absoluJon from the instance of judgment for the defendant. If the judge grants absoluJon from the instance at this stage, it means neither the plainJM, not the defendant has been successful in convincing the court that the balance of probabiliJes favours him. This occurs in 2 circumstances: 1. Where the evidenJary burden is on the plainJM and neither plainJM nor defendant could establish on a case 2. The result of the case depends on the credibility of a witness who gave contradictory evidence and it is impossible to give a judgment When the evidenJary burden is on the defendant, the court will never grant absoluJon from the instance at the end of the whole case. In this case – judgment for defendant if onus is discharged or for plainJM if not. SecJon 48 of the Magistrate’s Court Act Court can also grant an order against the party in whose favour judgment has been given, suspending wholly or in part the taking of further proceedings upon judgment for a speciRed period. Various judgments that may be granted as a result of the trial of an acJon: 1. Judgment for the plainJM if he has proved his case 2. Judgment for the defendant if he proved his case 3. AbsoluJon from the instance where evidence does not jusJfy judgment for either party 4. Judgement as to costs 5. Order subject to condiJons 6. Order for payment of money Can either be 1,2 and 3 Along with 4 And in certain cases, 5 and 6 too SecJon 65 of the Magistrate’s Court Act 43 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The court can also grant an order against a party for the payment of an amount of money for which judgment has been granted, in speciRed instalments or otherwise. Varia#on and se`ng aside of the court’s judgment Once a court has delivered a judgment, the ma2er is closed in the sense that the original court may not revisit the ma2er. The judge who delivered the judgment is functus o:cio, and there is the public interest in bringing liJgaJon to Rnality. If one of the parJes are not saJsRed the ma2er must be taken on appeal or review. ExcepJons where the original court may alter its judgement: c) CorrecJon of errors in a judgment: the court may not amend the essenJal substance of a judgment. Examples: ClariRcaJon of an ambiguity in the test of a judgment A patent error (clearly apparent) Typing error UnintenJonal omission of a costs order d) Rescission or cancellaJon of a judgment: may be done if given in error or by common mistake on the parJes, as well as default judgment Varia#on and rescission of judgement in the High Court Two ways that judgments may be varied in the High Court. 1. VariaJon in terms of common law High Court has authority by way of the common law to ‘supplement, clarify or correct’ own judgments, must be brought within a reasonable Jme. By way of this power, the courts has varied judgments to: a) Allow for inclusion of accessory or consequenJal facts that has been overlooked 44 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 b) Clarify a judgment which had a meaning that was obscure, ambiguous or uncertain c) Correct a clerical, arithmeJc or other error d) Correct, alter or supplement a costs order 2. VariaJon of a judgment in terms of rule 42(1) Supplements common law by providing certain instances where the court may either mero motu or on applicaJon by one of the parJes set aside or vary one of its judgments or orders. (Common element here – error). Following instances where variaJon is allowed: a) An order/judgment erroneously sought or granted in the absence of any party aMected thereby b) An order/judgment where there is ambiguity/patent error or omission in the order of judgment c) An order/judgment granted as the result of a mistake common to the parJes Rule 42(1)(a) – deals with default judgments that were erroneously sought or granted in the absence of any party aMected thereby. Elements hereof: - Judgement that was erroneously sought or granted - This occurred in the absence of a party aMected thereby Two situaJons where a judgment could have been granted in error: - Irregularity in proceedings - Court not legally competent to grant an order Rule 42(1)(b) – allows for the court to correct obvious mistakes and covers excepJons to the functus occio rule: 1. Principal judgment/order can be supplemented in respect of accessory or consequenJal ma2ers (eg. Forgot to rule on costs) 2. Court may clarify its judgment or order if it is uncertain (does not change the substance) 3. Court may correct a clerical, arithmeJcal or other error to give eMect to true intenJon 45 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 4. Where counsel argued merits and not costs, and the court made an order regarding costs, it may alter, correct or supplement such an order Rule 42(1)(c) – two broad requirements to rely on the rule to rescind judgment: - Common mistake between the parJes (both made the mistake) - CausaJve link between the mistake and the order Rescission of judgment in the High Court Ways of rescinding a default judgment in the HC: 1. In terms of rule 42(1) of HCR 2. In terms of rule 31(2)(b) and 31(5)(d) of HCR 3. Common law Recission in term of rule 42(1) Requires judgment to be granted because of error. If error can be shown, it is not needed to show good cause under this rule. This rule follows the same circumstances as those which allow for a judgment to be varied (set out above). Rule 42(1)(a) stated two elements needed: - Error made that aMects the judgment - Absence of a party aMected HC ma2ers cannot be set aside because both parJes consent to it as in the MC Rescission in terms of rule 31(2)(b) and reconsideraJon in terms of rule 31(5) (d) Rescission in terms of rule 31(2)(b) – takes place in respect of default judgments granted in terms of rule 31(2)(a), which are claims not for a debt or liquidated demand (unliquidated claim) and default judgment was granted because the defendant failed to deliver appearance to defend or enter a plea. 46 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 No rescission for situaJons where the registrar has granted judgment under rule 31(5), however parJes can set the ma2er down for reconsideraJon 20 days aSer acquiring knowledge of the judgment. Rescission under rule 31(2)(b) – within 20 days (meaning Rle with registrar and serve on plainJM in these days) of learning of the judgment (gained knowledge), the defendant can apply to the court (on noJce to the plainJM) to set aside the judgment. Court has the discreJon to set aside judgment if the defendant shows good cause, which has three elements: - Applicant must give reasonable explanaJon for his default - ApplicaJon must be brough bona Rde - Show existence of bona Rde defence A reasonable explanaJon for default Reasonable explanaJon – show default was not wilful. Wilful default exists where: 1 the defendant has knowledge that the acJon is being brought against him – if he shows that he failed to enter an appearance to defend because he did not know of the acJon it, it is not wilful 2 the defendant deliberately refrains from entering an appearance to defend, though free to do so – in certain cases the defendant cannot enter an appearance to defend because for example, he is in hospital or abroad and cannot make arrangements, this is not wilful default 3 the defendant has a certain mental amtude to the consequences of default – if the defendant is merely forgequl, negligent or makes an error and did not have a ‘don’t care’ amtude, it is not wilful default. The existence of a bona Rde defence The defendant cannot rely on lack of wilful default alone. He must show a prima facie case exists that warrants a rescission (set out nature and salient details of defence) 47 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The applicaJon must be brought bona Rde A bona Rde defence is not succient – must be clear that the defendant’s intenJon in bringing the applicaJon for rescission is to allow him to have his day in court (not some other moJve). Court has a wide discreJon in determining if he has good cause, but if wilful default can be shown, it will fail. Acdavits supporJng the rescission applicaJon must set out reasons for the defendant’s default and support his defence to show that it is bona Rde. Rescission in terms of common law Judgments can be set aside in common law in the following circumstances: 1. Fraud: prove the following  Successful party gave incorrect evidence  This evidence was given with the intent to mislead the court  This evidence led to the unfavourable judgment 2. Justus error (rare) 3. Where judgment has been granted by default: prove that  Party seeking relief presents a reasonable and acceptable explanaJon for failure to appear  This party has a bona Rde defence and has some prospect of success (HC has inherent jurisdicJon to rescind default judgments) 4. Other circumstances based on jusJce and fairness Void judgments Order of court that may be disregarded without semng it aside. These orders are void because: 1. The order was obtained against a party who had not been legally cited before the court 2. The case was conducted on behalf of a party without a proper mandate 3. The court lacked jurisdicJon But general rule – incorrect court order must be obeyed unJl it has been set aside 48 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Abandonment of judgment – HCR 41(2) Any party in whose favour any decision or judgment is given, may abandon such decision or judgment either in whole or in part by delivering no+ce thereof and such judgment or decision abandoned in part shall have eCect subject to such abandonment. Rescission and varia#on of judgments in the Magistrates’ Courts Varia#on and rescission in general SecJon 36 of the Magistrates’ Court Act: The court may, upon applica+on by any person aCected thereby, or, in cases falling under paragraph (c), suo motu: (a)rescind or vary any judgment granted by it in the absence of the person against whom that judgment was granted; (b)rescind or vary any judgment granted by it which was void ab ini+o or was obtained by fraud or by mistake common to the par+es; (c)correct patent errors in any judgment in respect of which no appeal is pending; and (d)rescind or vary any judgment in respect of which no appeal lies. The procedure to make applicaJon for rescission or variaJon of a judgment in the Magistrates’ Courts is set out in rule 49(7). Requirements: 1. Must be brought on noJce to all parJes 2. Must be supported by acdavit(s) that set out the grounds on which the applicant seeks rescission or variaJon Rescission of default judgments in parJcular Rule 49(1) – a party seeking to rescind a default judgment has 20 court days from the date upon which he received knowledge of the judgment to serve and Rle the applicaJon. Must send noJce to all parJes and show good cause. Good reason Court may rescind judgment if it saJsRed there is good reason to do so, but it sJll can be granted if the interests of jusJce warrant it in excepJonal circumstances. 49 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Good cause shown Same requirement as in HCR 31(2)(b). Good cause incorporates a prima facie defence and whether or not the defendant was in wilful default. SJll up to the discreJon of the magistrate. Four situaJons can arise: 1. Defendant brings the applicaJon to rescind default judgment and wants to defend the ma2er. Defendant did not receive the summons, heard about the judgment, consulted an a2orney and realized he has a case (most common). Contents of defendant’s acdavit: applicaJon must be supported by acdavits, and it must set out the following details a. Reasons for defendant’s absence or default: defendant shows why he is not in wilful default and b. The grounds of the defendant’s defence to the claim: defendant sets forth allegaJons that give rise to a defence Onus of proving wilfulness is on the respondent. 2. The Defendant brings the applicaJon to rescind but does not want to defend the proceedings – defendant would have paid if he heard about the summons, so he wants to remove the judgment from his name. He must saJsfy the court that: a. He was not in wilful default b. The judgment was saJsRed/arrangements were made to saJsfy the judgment within reasonable Jme 3. The plainJM agrees in wriJng that the default judgment should be rescinded or varied. When the defendant has paid oM judgment debt and wants the judgment rescinded to take his name oM the list of judgment debtor that credit bureaus might have (diccult to to obtain credit if your name is on this list). One applies by way of applicaJon at any Jme aSer the plainJM has agreed. One must give noJce to all parJes and provide wri2en proof of the plainJM’s consent 4. ApplicaJon for rescission of default judgment is made by a person other than those referred to 1, 2 or 3 above (catch all clause). Support this applicaJon with acdavits and reasons for rescission of default judgement. 50 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Interest Most claims sounding in money a2racts interest. Interest: amount of money calculated as a percentage of the original debt. Percentages and periods of calculaJon vary and make up rate of interest. Interest payable from the Jme the debt becomes due for payment and when the debtor eventually pays the debt. If the debtor makes periodic payments – calculate interest on outstanding amount. First deduct outstanding interest from a payment made before reducing capital amount. SpeciRc requests must be made for interest in the prayer. Not awarded without asking for. Major quesJons to address: rate of interest and the date from which it is calculated. Rate of interest: Percentage and periods diMer from case to case. If a contractual case – usually the parJes agree on a rate. Simple and compound interest Unless agreement to the contrary, only allowed to charge simple interest. Meaning the interest is calculated on the capital amount only and further interest is kept separate. Compound interest, is interest upon interest, meaning the amount of interest accrued is added to the capital amount before making a new interest calculaJon. No agreement – plainJM can charge the rate sJpulated in the Prescribed Rate of Interest Act, this is referred to the mora rate of interest (this act is subject to change – current rate is 15.5% per annum) Na#onal Credit Act 34 of 2005 The NaJonal Credit Act sets limits on the rate of interest charged in respect of certain types of agreements which may not be exceed 51 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The date from which interest runs Unliquidated v Liquidated debts Date from when the interest begins to run is determined by statute. Liquidated debts Close relaJonship between concept or mora and payment of interest. Date from which a debtor is placed in more is the date from which interest on the capital amount begins to run. Mora ex re situaJon Where a date for the performance of a contractual obligaJon is set in terms of an agreement. The claim is due and payable from the agreed date. When this date is reached – debtor is automaJcally in mora, and one does not need further demand. Interest is due and payable on the capital amount along with the capital amount being due and payable. If interest is menJoned, it starts to run from the date sJpulated. The rates menJoned in terms of the Prescribed Rate of Interest act is applicable unless sJpulated otherwise. Avoid claiming interest from date of demand or from service of summons or from the date of mora (tempore morae). More ex persona situaJon If no date is sJpulated when an amount is due and payable, interests starts to run when the debtor has been placed in mora by means of a demand made by the creditor or his a2orney (mora ex persona). Usually takes the form of a le2er of demand and must allow reasonable Jme for the debtor to pay. Unliquidated debts According to s 2A of the Prescribed Rate of Interest Act, an unliquidated debt such as a delictual claim shall bear interest as contemplated in secJon 1 (prescribed rate of interest) subject to any other agreement and the provisions of the NaJonal credit Act. It will run from the date on which payment is claimed. In arbitraJon proceedings it shall run from when the creditor takes 52 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 steps to commence arbitraJon proceedings. The interest on the debt runs from when the creditor takes steps to commence arbitraJon proceedings. Unliquidated claims are similar to a mora ex persona situaJon, But no allowance is made for payment to occur within a reasonable period. EnJre delictual claims may not be split into liquidated and unliquidated parts. A delictual claim is a single unliquidated claim and interest may only be claimed on the amount of the whole claim from the date of service of demand or summons. In duplum rule Interest may not exceed capital amount (common law). Therefore, once the interest that is due reaches the capital amount, it stops running, but when a parJal payment is made that reduces the amount, it stars running again. DraSing claim for interest Usually use phrase: ‘interest at the prescribed legal rate a tempore morae’ PracJJoners that only ask the prescribed legal rate prevents his client from recovering the full amount due. PracJJoners should claim interest at the earliest possible date (date of mora). Not needed to claim interest mindlessly from date of summons or from date of demand in a mora ex re situaJon. None of these processes has an inguence on mora in a mora ex re situaJon. A tempore morae is a general term that states that interest is to be calculated from the date that payment is due (this date may not always be that clear, therefore rather detail the date). DraSing a le2er of demand in a mora ex persona (interest claimed from when the debtor is in mora, not date of demand but from when performance became due) situaJon – draS in precise terms, instead of saying ‘payment due 14 days aSer receiving this le2er’ state that the payment is due on an exact day. Prayer should read similar to this: ‘Interest on the amount of (amount) at (rate) per annum, calculated from (date) to date of payment.’ If compound interest is used: Interest on the amount of (amount) at (rate) per annum, calculated and capitalised monthly in advance from (date) to date of payment,’ 53 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 The rate will depend on what was agreed upon and if no agreement took place then the rates prescribed by the Prescribed Rate of Interest Act will be used (currently the South African repurchase rate plus 3,5%) Costs Awarding costs to a successful liJgant serves the purpose of indemnifying him for the expenses of liJgaJon. Common-law principles apply to costs in the HC. In the MC, secJon 80 of the Magistrates’ Courts Act and MCR33 is applicable. General rules regarding costs Basic rule – courts discreJon, however there are general rules for guidance: 1. Successful party is enJtled to his costs. If absoluJon from instance – usually defendant 2. Court may deprive a successful party of his costs (whole or in part) if it has good reason. (successful party pays his own costs) 3. The court can order (with good reason) that the successful party must pay the whole or porJon of the costs of the other party 4. Special cases: order unsuccessful party to pay costs of the successful party on an a2orney-and-client basis on a more puniJve scale than normal. Two usual situaJons: a. When the agreement between parJes include a clause sJpulaJng that costs will be awarded on the a2orney-and-client scale. b. When the court wants to express displeasure at how the party has conducted the ma2er Purpose of a2orney-and-client costs: not puniJve but to ensure the successful party is not leS out of pocket in respect of the expenses due to liJgaJon (indemniRes the successful party). SomeJmes the court does not think it to be just that the winning party should be leS out of pocket at all (if the other party acted in a dishonest manner, for example), then it can award costs to the successful party on the a2orney-and- own-client scale ensuring that the expenses of the successful party are paid by the unsuccessful party (excepJonal circumstances and extreme displeasure) 54 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Tari\s of costs and the costs charged by an aborney The tariM Party who has costs awarded in his favour draws a bill of costs based on the work done (provided for by the tariM). MC tariM lower than the HC tariM. Costs in a bill costs are divided into fees and disbursements. Fees are amounts sJpulated in the tariM for the work done by the a2orney and disbursements are amounts that the a2orney had to pay on behalf of his client during the course of proceedings (eg. sheriM payments, transport costs, postage costs etc). A2orney’s fees – charge each consultaJon, conference, phone call etc. In HC bill of costs – idenJfy each separate le2er and phone call. MC - If agreement cannot be reached on bill of costs items – send to clerk of the court to be set down for taxaJon. ParJes will appear at taxaJon to argue for or against the various items and the clerk will act as taxing master and make a ruling. ASer agreement – bill is liquid and payable. HC – before enrolling a ma2er for taxaJon, the party to whom costs have been awarded is obliged to send noJce to the party against whom costs have been awarded staJng that the party is liable to pay costs and can inspect the documents between certain hours and on certain days for 10 days. It also states that the party may Rle a noJce to oppose within 20 days from noJce (contain items that he objects to). Taxing master may not proceed if he is not saJsRed that the other party has received noJce. NoJce is not necessary if: 1. Party liable for costs has consented in wriJng to the taxaJon 2. Party liable for costs failed to give noJce to oppose taxaJon 3. TaxaJon concerns writ and post-writ bills If the party liable for costs Rled noJce of opposiJon but fails to appear at taxaJon, it may proceed in his absence. Decision by the taxing master may be reviewed in terms of rule 48, but court will not likely interfere. 55 Downloaded by Tinyiko Sithole ([email protected]) lOMoARcPSD|8037265 Costs charged by a2orney to his client The fees in the tariM and the fees charged by the a2orney are not the same. The costs that an a2orney charges his client for professional services as well disbursements must be paid regardless of the outcome of the case. “Fee for professional services (a2orney-and-own-client costs): - fee which is negoJated between the a2orney and his client. A2orney must explain these fees to his client upon the Rrst meeJng. A2orneys can bill clients for actual work done (like calls made or le2ers draSer) or for their Jme per hour or provide an esJmate quote for work done. Or they can simply sJck to the simpliRed court tariM. If the a2orney charges an amount that is unreasonable, it can be regarded as overreaching by the law society and he can be ordered by a court to reduce his costs if he refuses to do so. A2orneys can also charge on conJngency basis in terms of the ConJngency Fees Act. A2orney fees may not exceed 25% of the amount awarded in favour of his client. Type of cost awards Award of costs on the party-and-party scale Party-and-party costs are costs incurred by a party in a case and which the unsuccessful party is ordered to pay him. Does not include all costs, only those the taxing master views as proper and necessary for the a2ainment of jusJce. These costs are based on a tariM sJpulated by the rules of court. When the court awards costs, it is taken to mean party-and-party costs. Professional services rendered costs is separate hereof, meaning the unsuccessful party must pay his own a2orney costs for professional services rendered, and the party-and-party costs. Award of costs on the a2orney-and-client scale This is seen as a halfway house between party-and-party costs and an award of a2orney-and-own-client costs. 56 Downloaded by Tinyiko Sithole ([email protected])

IURI 376 Semester 2 Study unit 10: PDF

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