OUTLINE OF COURT PROCEDURES

1. OUTLINE OF COURT PROCEDURES CIVIL PROCEDURES

2. INTRODUCTION • Distinguish criminal law from civil law • Definition: Civil law- consists of the collection of rules which regulate or enforce the legal rights of persons • Crimes –public wrongs • Civil wrongs – private wrongs (infringe the rights of the individual wronged and not the society so the law leaves it to the victim to seek compensation

3. Civil Procedure • Aggregate of legal rules which prescribe how a person’s rights and powers are upheld. • Assists a legal subject in the case of a violation, a threatened violation or the violation has not occurred at all of a subjective right.

4. Purposes (may b used for the following) • Obtain a declaratory order – in instances where the court is approached to pronounce a missing person to be presumed dead / cases where there is a will and the executor wants to ascertain what an unborn child can inherit if at all. • Prevent damage or injury – threatened violation of a right e.g someone threatens assault can apply for an interdict to prevent that person from the threatened assault or any further assault.

5. Purposes ...cont • To make damages or injury good – there is a violation of a right that caused damage or injury e.g an accident, the injured party may by means of an action either patrimonial or sentimental damages from the wrongdoer

6. Terminology • Plaintiff – aggrieved party who sues (dominus litis – person who initiates the proceedings) the defendant( person against whom the action is instituted)in order to enforce his / her rights and if successful the court gives judgement for him. • Judgement can include within the limits of the magistrates’ jurisdiction, an order for the defendant pay a sum of money to the plaintiff, deliver something, perform a specific duty or refrain from a certain activity

7. Terminology • Plaintiff’s duty to bring defendant to court, State plays no part, usually achieved by requesting the Clerk of Court to issue a summons to attend court. • Summons wherever possible are served by a messenger of the court in a civil case, criminal case by a member of the police • If defendant ignores summons unlike a criminal case where s/he will be arrested, in a civil case court may give judgement against him in his absence (judgement by default)

8. Terminology ...contd • Before commencement of a civil action parties must submit pleadings which are formal, written statements which set forth the claim and the defence of the plaintiff and defendant respectively • Parties may agree to vary virtually any normal rules e.g jurisdiction of a magistrates court.

9. Adversarial v Inquisitorial procedure • Difference boils down to judge’s participation • Inquisitorial – judge takes an active role in ascertaining the facts from the parties, going so far as to do a great deal of questioning witnesses, deciding which witnesses are to be called and determining the manner in which the trial is to proceed. Judge questions the parties to obtain the evidence necessary for her judgement.

10. A versus I contd... • Adversarial / Accusatorial – court is merely an umpire leaving proceeding entirely in the hands of the parties. The court only interferes to enforce rules of evidence and procedure, its duty being to decide at the end, which of the 2 sides had been successful. The 2 parties act like boxers with the judge as the referee whereby the parties agree on which documents to present before the court and which witnesses to call. Judge supervises the process and sees to it that rules are complied with.

11. Case law • Judge’s role in a civil trial under the adversarial system was expressed in Jones v National Coal Board (1957) 2 Q.B 55 where the judge noted that “ the judge’s part...is to hearken evidence, only himself asking...witnesses when it is necessary to clear up any point that has been overlooked or left obscure, to see that the advocates behave themselves seemly and keep to the rules laid down by the law, to exclude irrelevances and discourage repetition to make sure by wise intervention that he follows the points that the advocates are making and can assess their work and at the end to make up his mind where the truth lies.

12. Civil trial procedure v Application procedure • 2 main categories of civil proceedings are • Actions / trial – proceedings by way of summons, used when they are differences between the parties with respect to the facts of the case (disputes of fact), e.g in an accident A says B didn’t indicate whilst B maintains that he indicated. Two are plaintiff and defendant. Procedure more time consuming and expensive. Procedure known as trial because the court has to make a finding of fact between two versions of fact

13. Civil trial procedure v Application proc contd.. • Applications – proceedings by way of notice of motion, no fundamental differences concerning facts with the issue restricted only to disputes of law, parties known as applicant (approaches the court for particular relief) and respondent (person against whom relief is being sought). Court is called upon to make a determination of the law applicable, facts are addressed by way of affidavits and where disputes arise, the court resolves them on the papers • Also used in ex parte applications where there is one party involved to obtain a declaratory order

14. Stages of proceedings • Both action and application proceedings consist of 2 stages 1) Pleading stage • Pleadings contain statements by the respective parties with regard to the facts of the case. Purpose is to reduce the dispute between parties to a condensed and abbreviated version, prevent parties from surprising each other in court and make judge or magistrate familiar with the case beforehand. • In the High Court each pleading is filed with the registrar of the court, Magistrates court its filed with the clerk of court.

15. Stages contd... • 2) Trial • Follows the pleading stage • Proceedings may be accusatorial or inquisitorial

16. Structure of a civil action • i) Summons (commencing action) • ii) Appearance to defend • iii) Notice to plead • iv) Defendant’s plea • v) Plaintiff’s reply (replication) • vi) Joinder of issues / closing of pleadings • vii)Pre-trial conference • viii) Trial

17. Civil trial procedure 1. Letter of demand • First stage in most civil claims • Plaintiff makes a claim from the defendant, warning that if it is not settled within a specified time, s/he will institute civil proceedings • Not a legal requirement, however defendant may refuse to pay costs of summons if s/he did not have clear notice of the intention of the plaintiff • possible that the defendant will settle the matter making further proceedings unnecessary

18. Trial procedure contd... • The Summons • Definition : a judicial command or admonition, calling upon the defendant to answer the complaint of the plaintiff or to comply with what he demands, or to hear the judgement according to law. • Foundation upon which the whole case is built • In essence will notify the defendant of the plaintiff’s claim and will tell him to settle the matter or defend it within a specified period of time (called the dies induciae). Magistrates court summons must contain particulars of claim setting out cause of action. High Court particulars of plaintiff’s case usually attached to the summons in the Declaration. It is in a prescribed form and will contain the following information • i) names of the parties involved

19. Summons ...contd • ii) facts of the case ( what happened) • iii) extent of the claim (what the plaintiff claims) • iv) remedy or relief that the plaintiff asks from the court • Summons can only be served on the other party by a court official, Magistrates court – messenger of court, High court – Sheriff or Deputy Sheriff. Before summons can be served it must be issued by the court i.e signed and stamped by the clerk of court (Magistrates Court), and the Registrar (High Court)

20. Summary on Summons • A process of court which: • Requires a defendant to enter an appearance to defend • Warns the defendant of the consequences of failing to enter appearance • Sets out the claim and particulars of the claim and • States the period within which the defendant may enter appearance to defend

21. The pleadings • Definition: printed or written statements made by and delivered between the parties to an action, setting forth in a summary form the material facts on which they respectively rely in support of their claim or defence. • Parties are bound by their pleadings, neither party may put forward any point that has not been disclosed in the pleadings. If a party wishes to amend his pleadings may apply to the court to do so, which will only be allowed when it will cause no prejudice to the other party and or when the other party consents.

22. Appearance to defend • If the defendant wishes to contest the plaintiff’s claim, the Rules prescribe that he shall “enter an appearance to defend by delivery of a memorandum in writing that he intends to defend. This does not specify the defence. • If defendant doesn’t wish to defend may consent to judgement. • Where s/he fails to enter an appearance to defend altogether plaintiff may obtain default judgement • Where the plaintiff is convinced the defendant only entered appearance to buy time but has no bona fide defence to the claim, plaintiff may apply to court for summary judgement. • Summary judgement enables a plaintiff with a clear and unanswerable claim to obtain judgement without going to trial. The rationale is to dispense with a defence of no substance without putting plaintiff to the expense of a trial.

23. Case: Chrismar v Stutchbury 1973 (1) RLR 227 • Judge note that: “ the special procedure of summary judgement was conceived so that a mala fide defendant might summarily be denied except under onerous conditions the benefit of the fundamental principle of audi alteram partem, so extraordinary an invasion of a basic tenet of natural justice will not be lightly resorted to and it is well established that it is only when all the proposed defences to the plaintiff’s claim are clearly unarguable both in fact and in law that this drastic relief will be afforded to a plaintiff.

24. Request for further particulars • After entering an appearance to defend , defendant may request further particulars from the plaintiff to enable him or her to plead (answer the plaintiff’s claim) • If reasonably necessary the pleader is required to supply it, and if necessary be ordered by the court to do so • Case of Time Security v Castle Hotel 1972 (3) SA 112 it was held that “ A litigant must not be put in an embarrassing position of being forced to resort to a bare denial by the lack of particularity. A denial which in light of the particulars supplied at a later stage. He might well be obliged to withdraw or to qualify.”

25. Defendant’s plea • Defendant’s answer to the plaintiff’s claim. • Must be filed with the court, within a specified amount of time according to the Rules of Court and then served on the plaintiff. • Required to state nature of his defence clearly and concisely and cannot rely on a defence he has not pleaded • Bare denial of liability is specifically forbidden e.g the defendant denies the plaintiff’s allegations and prays that his claim be dismissed with costs. • Defendant may in addition to a plea may make a counter claim (making a claim against the plaintiff).

26. Replication • Plaintiff can answer the plea with a replication when necessary • Plaintiff’s reply to or commentary on the plea • In the Magistrates’ court the plaintiff can first serve a written request for further particulars with respect to the plea.

27. Litis Contestatio • Closing of pleadings, dispute between the parties has been fully described in their pleadings, no further pleadings may be exchanged • The issues at this time are set out in pleadings and the rights of the parties are frozen and the claim can be transferred e.g if the plaintiff dies, the heir can proceed with the claim. • Technically all documents from summons to replication are called pleadings and they are considered closed if parties join the issue (joinder of issues) making it clear that they are in disagreement and look to a trial for resolution of the dispute. • After litis contestatio the plaintiff must apply to the court for a trial date and must see to it that the case is placed on the court roll. Plaintiff must notify the defendant in writing of the date, time and place of trial

28. Discovery • Either party may apply for discovery after close of pleadings i.e require the other party to specify the documents and books which s/he intends to use at the trial. Books and or documents not disclosed may not be used at the trial by the party who failed to disclose them

29. Pre-trial conference • Conference held after discovery and is attended by both parties, chaired by a judge or magistrate. • Purpose is to define the issues and reach agreement where possible on issues such as length of trial, number of witnesses and exhibits • Also held to explore the possibility of settling the matter without going to trial.

30. Trial date • In the High Court a trial date may be obtained at the pre-trial conference, if not an application for a date has to be made. • In Magistrates Court, trial date is obtained from the clerk of court. • After getting a date the party who obtained it must file and serve a notice of set-down.

31. The trial • Burden of proof is on the plaintiff, where in order to succeed s/he must prove his/her case on a balance of probabilities

32. Judgement • Judgement to be given at the end of the trial • May take one of three forms: 1) judgement for the plaintiff 2) judgement for the defendant 3) absolution from the instance – means neither party has won the case and the parties remain where they were before the trial started

33. Enforcement of judgement • A civil judgement may be enforce by any one of the following methods • Execution of property A warrant/ writ of execution may be issued against both movable and immovable property Immovable property may only be attached if there is insufficient movable property to satisfy the judgement, however property essential to the sustenance of the work and life of the judgement debtor and his family may not be attached e.g clothes, food, professional books/documents and tools of trade Magistrates court – writ carried out by messenger of court High court – Sheriff or Deputy Sheriff

34. 2. Garnishee order • Order may be made against any debt due or to become due to the judgement debtor. • Usually against salaries or wages and in such a case the garnishee order requires the employer to pay a portion of the wages every month to the judgement creditor until the debt has been paid off. • Required by law that in determining the portion of the salaries or wages to be deducted under the garnishee order, the amount left-over must be sufficient to enable the judgement debtor to maintain him/herself and his or her dependents

35. 3. Civil imprisonment • Imprisoning a debtor as a way of compelling him or her to satisfy the judgement. It is not a punishment for a debtor who has no financial means to pay, thus imprisonment is only available where it is proven that the debtor has the ability to pay and that his/her failure is wilful. • Maximum period is 3 months for civil imprisonment but debtor to be released as soon as the debt is paid even before the 3 months is up. Where a debtor serves the full term s/he may not be re-imprisoned for the same debt but the judgement debt is not discharged. Means that other methods of enforcement such as execution of property and a garnishee order may still be used In Chinamora v Angwa Furnishers Pvt Ltd 1996 (2) ZLR 664 (S) the court gave a summary of the scope of civil imprisonment see Madhuku

36. Contempt of Court • Civil contempt is designed to compel performance of the court order through the device of committing the defaulting party to prison. • The person seeking compliance applies to the court to have the defaulter found guilty of, and subsequently be found guilty of contempt of court. • Imprisonment can be avoided by the defaulting party by complying with the court order. • Two requirements need to be satisfied for a person to be held in contempt of court: i) the order was not complied with, and ii) non-compliance was wilful on the part of the defaulting party see Scheelite King Mining Co (pvt) v Mahachi 1998 (1) ZLR 173 (H). • Difference between civil imprisonment and contempt of court is that for civil imprisonment a person can only be imprisoned once for the failure to pay a specific debt whereas imprisonment for contempt can be repeated for the same contempt as long as non-compliance with the court order continues.

37. Appeals and Reviews • If one is dissatisfied with a judgement of the court may appeal to a higher court. • Appeal- concerned with the merits of the decision appealed against e.g whether it was wrong or right • Based on the argument that the method used to reach the decision was wrong. • Parties are bound by the record • May be brought solely at the instance of the parties concerned. • May only be undertaken at the final stages of an action. • Review – concerned with the decision-making process whether during the trial procedure was properly followed. • Irregularity may not appear from the record and the applicant may have to prove facts outside the record. • Other interested persons may apply for a review. • May be brought at any stage of the proceedings • Procedure for appealing and that for review are different.

38. Appeals and reviews...contd • No automatic right to appeal, only available when granted by statute • Power to review is vested in the High Court, unless prohibited by statute review is available if the grounds of review are present. • These grounds for a review arise when the decision sought to be reviewed is either: • Grossly unreasonable, or • Illegal, or • Was arrived at contrary to the principles of natural justice, or • Made by a body that either lacked the jurisdiction to do so or exceeded its powers i.e., acting ultavires In an appeal the appellant court may either affirm or set-aside the decision appealed against, so may substitute its own decision for the one under appeal

39. A & R contd.. • In a review reviewing court may either set-aside or refuse to dismiss the decision / proceedings. • Where it sets aside the decision or proceedings it is not entitled, except in exceptional circumstances, to substitute its own decision. • Proper approach is for it to remit the matter to the relevant body for a decision.

40. Application Procedure • The steps in an application procedure are as follows: • Application plus applicant’s founding affidavit – the application must be supported by a founding affidavit that presents the facts upon which the application is based. It must indicate the order that is being sought in a provided draft. • Opposition plus respondent’s opposing affidavit – respondent must state the fact of his/her opposition to the application and support it with an opposing affidavit. It must respond to each and every averment made in the founding affidavit, stating whether or not facts in the applicant’s founding affidavit are being admitted or denied. • Applicant’s answering affidavit – applicant may file a further affidavit that answers issues raised by the respondent, with particular focus on facts disputed by the latter. Any failure to challenge the respondent’s version of the facts may be taken as an acceptance of that version.

41. Application procedure ...contd 4. Heads of Arguments – written legal arguments supported by legal authorities. They must be filed with the court before the oral arguments given at the hearing. 5. Hearing to present oral arguments – a hearing is either held in open court or in the judge’s chambers to enable the parties to present oral arguments if they wish. Hearing may merely be utilised for the purpose of clarifying points made in the heads of argument. 6. Judgement – application is either dismissed or granted.

42. Activities 1. Write short notes on all the stages of civil procedure. 2. Differentiate between: i) civil trial / action procedure and application procedure. ii) Adversarial v Inquisitorial procedure iii) Declaration and particulars of claim 3. Explain application procedure. 4. Explain how a judgement is discharged in a civil matter.