07/01/2022
ACTION PROCEEDINGS IN A NUTSHELL
Action proceedings are commenced by way of summons and consist of various stages.
The first is the pleading stage, where the parties serve and file pleadings which set out their claims, defences and counterclaims. Typical pleadings include the plaintiff’s particulars of claim, the defendant’s plea and the plaintiff’s replication. They may also include the defendant’s counterclaim (or claim in reconvention), the plaintiff’s plea in reconvention and the defendant’s replication in reconvention. Further pleadings are possible but are not usually filed.
Second comes the discovery stage, where the parties call on each other to make discovery. This is essentially a process whereby the parties are required to exchange lists of documents in their possession which are relevant to the issues in dispute, and which are not subject to legal privilege. The parties would usually provide each other with the documents that have been disclosed so that each party can prepare for trial.
Third is the trial preparation stage, where each party will prepare its case for trial, by inter alia interviewing witnesses, serving subpoenas to secure witnesses and/or additional evidence, filing of expert notices and summaries, requesting trial particulars and admissions, and holding pre-trial conferences.
The fourth is the trial stage, where each of the parties will be afforded an opportunity to present their cases to the presiding Judge or Magistrate, by way of oral witness testimony. Each witness will be examined-in-chief, cross-examined and re-examined. At the end of the trial, the parties’ respective advocates will typically present closing argument and ask the court to grant the relief claimed in the parties’ various pleadings.
The fifth is the judgment stage where the Judge or Magistrate will deliver his or her judgment in the matter.
Where any of the parties are dissatisfied with the judgment, they will have an opportunity to note an appeal or, in suitable cases, to take the judgment on review.
Once a judgment becomes final and binding, it must be complied with otherwise the successful party could levy ex*****on of the judgment through the Sheriff of the Court.
What is set out above is a high-level overview of the action proceedings only, and there are many related and/or interlocutory processes that could take place during the course of a trial action (such as Exceptions, Irregular Steps, Summary Judgment Application, Default Judgment Applications, Applications to Compel, Applications to Strike Out, Applications to Dismiss, etc).
The proceedings before the various divisions of the High Courts are governed by the Superior Courts Act 10 of 2013, the Uniform Rules of Court, various reported cases which deal with specific issues that have arisen in matters before the High Court, and the various Practice Directives issued by the Judge President of each division.
Although it is permissible for parties to litigate-in-person without legal representation, the court processes are so specialised that it is incredibly risky for a non-lawyer to conduct a case in a South African court. One not only has to understand procedural rules and nuances, but you also need a firm grasp of the substantive law relating to the cause of action or defence that is being advanced, as well as the law of evidence and technique in litigation.
