BASIC GUIDE TO CIVIL HIGH COURT LITIGATION

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This booklet describes, in basic terms, the procedures for pursuing matters in the High Court. It is neither intended to be a detailed or authoritative exposition of those procedures, nor to deal with practice in the Magistrates Courts. Any questions that readers may have arising out of the contents of this guide may be raised with any of the members of Bowman Gilfillan’s dispute resolution department. A list of directors and Bowman Gilfillan Africa Group The Group has offices in Antananarivo, Cape Town, senior associates is located at www.bowman.co.za. Dar es Salaam, Gaborone, Johannesburg, Kampala and is one of Africa’s premier corporate Nairobi. Our office in Madagascar, has francophone law firms, employing over 400 African coverage in Benin, Burkina Faso, Burundi, specialised lawyers. The Group Cameroon, Central African Republic, Chad, Congo Republic, Gabon, Guinea, Ivory Coast, Mali, Niger, Contents provides domestic and cross-border Rwanda, Senegal and Togo. legal services to the highest Attorneys and Advocates 02 We have a best friends relationship with leading The Letter of Demand 02 international standards across law firm Udo Udoma & Bela-Osagie, in Nigeria, Africa, through its offices in which has offices in Lagos, Abuja and Port Jurisdiction 03 Harcourt. We also have strong relationships and South Africa, Botswana, Kenya, Action or Motion Proceedings 03 work closely with law firms across the rest of Africa Madagascar, Tanzania and Uganda. which enables us to provide or source the advice The Action Procedure (Trial Procedure) 04 clients require in any African country, whether on Trial Preparation 10 Differences in law, regulation and business culture a single country or multi-jurisdictional basis. Execution of Judgments 17 can significantly increase the risk and complexity of doing business in Africa. Our aim is to assist our We act for corporations, financial institutions, state Execution 18 clients in achieving their objectives as smoothly owned enterprises and governments providing Garnishee Orders 19 and efficiently as possible while minimising the legal clear, relevant and timely legal advice to assist clients and regulatory risks. achieve their objectives and manage their legal risks. Enforcement Of Foreign Judgments 20

The Application Procedure 21 While reliable technical legal advice is always very Geographical and sector specific teams are utilized to important, the ability to deliver that advice in a provide clients with the highest standards of service. Recovery Of Costs 22 coherent, relevant way combined with transaction In the cross-border arena the Group has extensive management, structuring, negotiating and experience in the resources, energy, infrastructure, drafting skills is essential to the supply of high financial institutions and consumer goods sectors. quality legal services. Bowman Gilfillan Africa Group’s South African, Kenyan and Ugandan offices are representatives of Lex Mundi, a global association with more than 160 independent law firms in all the major centres across the globe. This association gives access to firms which have been identified as the best in each jurisdiction represented.

01 Attorneys and Advocates The Letter of Demand Jurisdiction Action or Motion

Like England, South Africa has a split bar system, A letter of demand is generally the first step in the legal Jurisdiction refers to the authority or competence of a Proceedings consisting of attorneys and advocates. process. While a letter of demand is required in some particular court to hear a matter and to grant relief in instances, it does not need to be sent in all circumstances. respect of that matter. Once a decision has been made to embark on litigation The advocates’ profession is a referral profession, It is, however, usual practice that a letter of demand will in the High Court it is necessary to determine which means that advocates cannot accept briefs be sent before instituting legal proceedings. It is first necessary to determine whether the High Court whether to proceed by way of trial (action) or motion directly from clients. The attorney is approached by or a lower court (i.e. Magistrate’s Court or Small Claims (application) proceedings. the client and it is the attorney who takes instructions A letter of demand is, as its title suggests, a letter Court) has jurisdiction to hear the matter. Determining from the client and briefs the advocate. An advocate addressed to the other party demanding, for example, whether to proceed in a lower court or in the High In action proceedings, the person bringing the action (also called counsel) will generally provide strategic fulfilment of an outstanding obligation or payment of a Court will depend on the type of claim and the value is called the plaintiff, and the person defending the advice, settle pleadings and represent the client in sum of money. of the claim. The Small Claims Court is competent to action is called the defendant. court or in arbitration proceedings. hear matters where the value claimed is below R12 000, Generally a letter of demand will set out the cause of and only individuals may bring claims in this court. In application proceedings, the person bringing the Advocates are either senior or junior counsel. Senior action on which the demand is based, and will give the The Magistrate’s Court is constrained to matters where application is called the applicant, and the person counsel, or silks, are advocates who have many years other party time to comply with the demand. If the the value claimed is R300 000 or less. The parties can, defending the application is called the respondent. of experience and who have had the status of Senior demand is met then no further steps will be taken. however, agree to the jurisdiction of the Magistrates Counsel conferred on them by the President. They will Court in claims exceeding R300 000. There are certain In determining whether to proceed by way of action be briefed generally for complex matters where they matters which may only be heard by the High Court, or application, the question to be asked is whether a have specialised skills and expertise. Junior counsel are regardless of the quantum of the claim. material dispute of fact is anticipated. If a dispute of less experienced advocates and will charge substantially fact is anticipated then generally it is best to proceed less than senior counsel. Where appropriate, junior Once it has been established that the High Court has by way of action where witnesses may be called to give counsel will be briefed alone but, where the matter is jurisdiction, it must be decided which seat of the High oral evidence at a trial. If no such dispute of fact is complex or the claim is substantial, it is often necessary Court is competent to hear the case. As a general rule, anticipated then application proceedings are probably to brief both a senior counsel and a junior counsel. a court will exercise jurisdiction on the basis that the appropriate. In an application, the matter will be defendant is resident or domiciled in the area of the determined with reference only to the papers and, as a Attorneys who have obtained right of appearance court or if the cause of action arose in that area. general rule, no oral evidence is permitted. may appear in the High Court but in complex and substantial matters the tradition of utilising counsel The disadvantage with motion proceedings is that the remains prevalent. evidence is set out in affidavits and cannot be tested by cross-examination. Consequently, it is difficult for When counsel is briefed, the role of the attorney is a court to decide between conflicting versions. The to instruct the advocate on behalf of the client, and advantage of motion proceedings is that they are advocates may not consult with clients unless the generally speedier and less expensive than actions. instructing attorney is present. If the court is faced with an application in which it is evident that there is a material dispute of facts between the parties then the court will refer the matter to trial.

The different procedures are set out more fully below.

02 03 A simple summons may be signed by the plaintiff or is an even balance of success between the parties on An application for summary judgment must be served The Action Procedure the plaintiff’s attorney. A combined summons must the papers, and there is a reasonable prospect that within 15 days of the delivery of a notice of intention to (Trial Procedure) be signed by the plaintiff or by its attorney and an oral evidence will enable the defendant to successfully defend. In most instances the plaintiff will be granted advocate or an attorney with right of appearance in the prove his case. summary judgment where the defendant has no bona The Summons High Court. Once signed, the summons is then issued fide defence and has entered an appearance to defend by the registrar of the High Court concerned. Once the Notice of Intention to Defend solely for the purposes of delaying the action. The issue and service of a summons commences the summons has been issued by the Court, the summons is trial action. The purpose of a summons is to bring the sent to the appropriate sheriff with instructions to serve After service of summons by sheriff, the defendant is Summary judgment can only be sought where the plaintiff’s claim to the attention of the defendant by the summons on the defendant at his residence or place generally given 10 business days in which to deliver a defendant has delivered a notice of intention to defend, informing the defendant of the nature of the plaintiff’s of business. Once the sheriff has served the summons, notice indicating his intention to defend the action. the plaintiff’s case is based on a liquid document or a cause of action and the claim made. The summons he will complete a return of service to indicate that The notice must set out an address for the service of liquidated amount of money, the delivery of specified generally informs the defendant that it has 10 business service was successful. A defendant is only deemed to documents on the defendant. This will generally be the movable property, or ejectment from property, and the days within which to deliver a notice of intention to have received the summons when the summons has been address of the defendant’s attorney, which must be plaintiff believes that the defendant does not have a bona defend the action and that failure to give notice within properly served by the sheriff. within 15 kms of the High Court concerned. Where the fide defence and is merely trying to delay judgment. the prescribed time will allow the plaintiff to apply for plaintiff’s attorney is further than 15 km from the Court, default judgment against it. Provisional Sentence Summons the attorney will need to appoint a correspondent firm There are two ways in which a defendant may defeat an of attorneys within 15 kms of the Court, who will act as application for summary judgment. He may give security There are two types of High Court summonses; a simple A provisional sentence summons is an extraordinary a post box for the receipt of court documents. to the value of the claim to the plaintiff or satisfy the (ordinary) summons and a combined summons. The procedure in terms of which a plaintiff in possession of a court that he has a bona fide defence to the claim. nature and complexity of the plaintiff’s claim will document showing an indebtedness for a liquidated sum Default Judgment determine what type of summons is used. of money, for example, a cheque, may obtain provisional Where security is provided, the court has no discretion and judgment for the amount payable on the face the A plaintiff may apply for default judgment where a must grant leave to defend. Where the defendant maintains A simple summons is used when the cause of action document prior to the trial date. The rationale behind defendant has failed to serve a notice of intention that he has a bona fide defence, the defence must be is based on a debt or liquidated demand. A combined this is that the court will grant a provisional judgment to defend within the prescribed time or where the explained in an affidavit. summons is used when the plaintiff’s claim is not in favour of the plaintiff on the basis that in issuing the defendant has failed to deliver its plea after receiving a founded on a debt or liquidated demand. In addition, in document in question the defendant has acknowledged notice of bar from the plaintiff. Where the prescribed As summary judgment is final courts are often reluctant a simple summons, there will be no detailed particulars its indebtedness to the plaintiff for the amount stated in time lapses, the plaintiff is entitled, without further to shut the doors to the defendant. Accordingly a court of the claim attached, as is the case in a combined the document. The court must be provisionally satisfied notice to the defendant, to apply for final judgment has a discretion whether or not to allow the defendant summons. Rather, a brief description of the plaintiff’s that the plaintiff will succeed in the principal case. against the defendant. leave to defend the action if it has served an affidavit cause of action will be given (such as money lent and that appears to set out a defence. advanced), as well as the relief claimed by the plaintiff. The advantage of this procedure is that it allows a Where default judgment is granted, the plaintiff is able plaintiff to promptly recover a money debt from the to demand compliance with the judgment. Exceptions Once the defendant delivers a notice of intention to defendant. The purpose is to bring proceedings to a defend after receipt of a simple summons, the plaintiff speedy end especially when the defendant does not have Where the defendant was not aware of the service Before the defendant delivers his plea (statement of will deliver a declaration, which sets out the cause of a defence to the plaintiff’s liquid claim. If the defendant of the summons, it is possible for the defendant, on defence) he may raise defences that do not go into the action in more detail. This is similar to particulars of disputes the allegations, the onus is on the plaintiff to learning of the judgment against him, to apply for a merits of the case, but rather to technical legal issues. claim attached to a combined summons. prove that they are true. rescission of judgment. This application is supported This may be done by special plea or exception. by an affidavit which must provide a satisfactory The particulars of claim, which is attached to a The judgment obtained by the plaintiff at the early stage explanation for the defendant’s failure to give notice An exception is an objection to a material defect in the combined summons, outlines the nature of a plaintiff’s is provisional and cannot prevent the defendant from of intention to defend and explaining the nature of the opposing party’s pleadings. Where a defendant wishes to claim and the relief sought against a defendant. The proceeding to the principal case. defence that will be raised. take exception to a declaration or particulars of claim, particulars of claim will set out a description of the then he must do so within 20 days after the service of parties to the action, the background to the dispute, In a recent Constitutional Court judgment the Summary Judgment a declaration or 20 days from the date on which the and will ensure that the claim and all the facts upon constitutionality of the provisional sentence procedure defendant files a notice of intention to defend. Where which the claim is based are fully outlined. The was considered. Summary judgment can be sought in certain the plaintiff wishes to take exception to the defendant’s particulars of claim must contain sufficient detail to circumstances when an action is defended. It is a remedy plea, then it must do so within 15 days after the service enable to the defendant to defend the allegations made The Constitutional Court held that the courts should which is pursued by a plaintiff seeking speedy judgment of the defendant’s plea. against him and must include a copy of any written have a discretion to refuse provisional sentence in at an early stage without the delay and expense of a trial. agreement that is relied upon. certain limited circumstances; namely, where there defendant is unable to pay the judgment debt, there

04 05 An exception may be raised where, for example; the admit, deny or confess and avoid each of these specific not be discovered. These include, amongst others, pleading is vague and embarrassing (unintelligible, allegations. Where a defendant fails to deal with a Trial Preparation communication made in a bona fide attempt to contradictory or lacking in particularity), or it lacks the specific allegation, then the allegation is deemed to be negotiate settlement and documents which fall within What happens after pleadings are closed? statements necessary to sustain a cause of action or a admitted. professional legal privilege. defence (it does not contain the material allegations Once all the pleadings have been filed, pleadings are required for the cause of action or defence to be relied The Counterclaim and the Plea to the Each party may call on the other party to make then deemed to be closed. Between this stage and the upon, or the claim relied on is bad in law). Counterclaim discovery. This is done in the form of a notice requesting trial a number of important procedures take place. The the delivery of the discovery affidavit within 20 days of most important of these procedures is discovery. Special Plea A counterclaim or claim in reconvention is the receipt of the notice. defendant’s separate cause of action against the Applying for a Court Date A special plea is a separate, special defence which plaintiff. If a defendant wishes to bring a counterclaim, Pre-trial Conference either destroys the cause of action or postpones its he is obliged to do so when filing his plea. Once pleadings have closed the next step is to apply for operation. A few examples of defences which may be Within a perscribed period before the trial date the a court date from the registrar of the appropriate court. raised as special pleas are as follows: that a party with The plaintiff does not need to deliver a notice of attorneys and counsel representing the parties must The plaintiff usually requests the trial date but it may an interest in the matter has not been cited as a plaintiff intention to defend the counterclaim, but the plaintiff attend a pre-trial conference. The primary purpose of also be requested by the defendant if the plaintiff fails to or defendant, that the matter has been bought in the must then deliver a plea to the counterclaim, in which this conference is to facilitate a discussion between the do so within six weeks after the close of pleadings. incorrect court, that the plaintiff is not competent to the plaintiff must set out its defence to the counterclaim. parties to find ways of expediting the process by limiting bring the matter to court, that the time period within The plea to the counterclaim must be delivered at the the issues between the parties for the purpose of trial. Discovery which to bring the action has prescribed, that the same time as a replication, if one is to be delivered. It also provides the parties with an opportunity to settle same matter is already before a competent court, or, the matter before going to trial. A formal minute of the Discovery is one of the most important steps in pre- where there is a contractual dispute, that there is an The Replication pre-trial conference is prepared and is required to be trial preparation and is based on the principle that a arbitration clause in the contract and the matter must handed to the presiding judge prior to the trial. party is entitled to be notified prior to the hearing of be referred to arbitration and decided by an arbitrator. A replication is the plaintiff’s response to the the matter of all the documentary evidence, including defendant’s plea and is necessary only when the plaintiff Security for Costs tape recordings and e-mails, which the opposing party Plea wishes to place new facts before the court or clarify possesses which are relevant to the matter. issues raised in the counterclaim. Where there is a reasonable apprehension that the A plea (statement of defence) is the defendant’s response plaintiff or applicant will be unable to pay the costs of Discovery is the procedure in terms of which the parties to the plaintiff’s summons and must be delivered within Interlocutory Procedures the matter if an award is granted against them, then the disclose to each other all relevant documents and 20 days after the defendant has delivered its notice of defendant may call for security for costs. Although the tape recordings that they or their agents have in their intention to defend. Interlocutory procedures are concerned with resolving court has a discretion, it will probably order security for possession or under their control. Discovery is made side-line issues prior to the trial taking place. They costs when: by way of affidavit to which a list is annexed listing all Failure to file a plea in the prescribed time period entitles are always brought by application and are dealt with the documents in the discovering party’s possession. the plaintiff to deliver a notice of bar calling on the separately from the main trial. Generally, a party will not be allowed to use any the plaintiff is neither resident nor domiciled within and defendant to deliver the plea within 5 days. Should the documents that he has failed to disclose in response to a does not own immovable property in South Africa; defendant fail to do so then the defendant is barred request for discovery. from delivering his plea and the plaintiff may then apply the plaintiff institutes proceedings which the court for default judgment as the defendant has failed to considers vexatious; or There are however, certain exceptions to need to defend the claim. In practice however, before barring the plaintiff who instituted the proceedings is litigating disclose relevant documents. These include witness the defendant, the plaintiff’s attorneys will as a courtesy in a nominal capacity and is found by the court to be a statements taken for the purposes of the trial, send a letter to the opposing attorneys demanding ‘man of straw’ behind whom the plaintiff is sheltering. communications between attorney and client, that the outstanding plea be delivered within a certain communications between attorney and advocate and period of days. pleadings, notices and affidavits in the action. In terms of section 13 of the Companies Act 61 of 1973, courts had a discretion to order a company that The plea must set out the defence upon which the There are certain other documents which are instituted legal proceedings to furnish security for costs defendant relies and must contain a paragraph-by- considered to be privileged, and which likewise need if there was a belief that the company would not be able paragraph reply to each of the allegations made by the plaintiff in its particulars of claim. The defendant will

06 07 to pay the costs of the other party. Section 13 has now A settlement proposal can either be made on the record Review been repealed by the Companies Act 71 of 2008 and or off the record. Appeals and Review there is no equivalent provision. Recent case law has and Procedure A decision of a court may be taken on review where held that, despite the repeal of section 13, the courts still Where a settlement proposal is made off the record the procedural correctness or fairness is questioned. have an inherent power to regulate their own process. and the proposal is not accepted, then the proposal Once judgment is delivered, a litigant that is It is the process in terms of which the proceedings of Accordingly, each case will be decided on its own set may not be used or referred to in court or arbitration dissatisfied with the judgment granted may, in certain a lower court are bought before a higher court as a of facts. If there appears to be a necessity for security proceedings. This is because the proposal has been circumstances, apply to have the judgment set aside by result of certain irregularities. As it is unlikely that the for costs then the courts may grant security for costs made with a bona fide intention to settle the matter instituting either appeal or review proceedings. irregularity will be apparent from the record, in review against a company. and the party making the proposal should not be proceedings external evidence will be required to prove prejudiced during the trial or arbitration if the Appeals the irregularity. A notice calling for security for costs needs to be proposal is not accepted. delivered as soon as possible after proceedings Where a dissatisfied litigant is of the view that the The proceedings of a lower court may be bought under commence. This notice must set out the grounds for Sometimes a party may wish to make an on the judgment ought to be set aside because the court review on the basis of: requesting security for costs. On receipt of this notice, record settlement proposal. In these circumstances, reached the wrong conclusion on the facts or law, the plaintiff may either provide the requested security, if the proposal is not accepted, then either party the appropriate remedy is an appeal. Since an appeal absence of jurisdiction on the part of the court; or dispute the amount of security requested, or dispute may refer to the proposal during the proceedings. involves a re-evaluation of the court’s decision, it will be interest in the cause, bias, malice or corruption on the liability to give such security. In the latter case the The advantage of making an on the record settlement based solely on the record of the proceedings. party who requests security can apply to the court for proposal is that it illustrates to the judge that the part of the judicial officer; or an order that security be furnished. If only the amount party making the offer is bona fide and has made Appeal proceedings are instituted by lodging an gross irregularity in the proceedings; and / or of security is in issue, the registrar will fix the amount. every attempt to settle its dispute with the other application for leave to appeal. Leave to appeal is the admission of inadmissible or incompetent evidence The main proceedings can, by order of the court, be party outside of the court or arbitration. not granted automatically and the party bringing the or the rejection of admissible or competent evidence. suspended until any order granted is complied with. application must first apply for leave to appeal to the A further settlement option available to a defendant is court that handed down the decision. Leave to appeal The amount to be provided as security is generally an offer to settle in terms of Rule 34 of the rules of the must be sought within 15 court days after the date Review proceedings are brought by way of an determined by an official in the office of the registrar High Court. The rule provides that, in an action where a of delivery of the judgment or order in question. The application. A notice of motion and founding affidavit known as a taxing master. A plaintiff or applicant may sum of money is claimed, the defendant may at any time, application for leave to appeal will then be set down must be delivered which sets out the grounds, facts and oppose the amount requested before the registrar. A unconditionally or without prejudice, make a written and heard by the same judge who presided over the circumstances upon which the review is alleged. plaintiff’s failure to comply with an order for security for offer to settle the plaintiff’s claim, which must be signed proceedings in question. costs may lead to a dismissal of the application or action. by the defendant himself or his attorney, who must be authorised in writing to do so. The offer will only be Where leave to appeal is granted it will either be to Settlement brought to the attention of the court after judgment is the Supreme Court of Appeal (“SCA”) or to a full bench granted and if it becomes relevant regarding costs. (usually three judges) of the High Court concerned. A A dispute between parties may be settled at any further appeal may lie from a full bench to the SCA and time prior to judgment. In practice, one party (often from the SCA to the Constitutional Court, where there the defendant) will approach the other party with a are constitutional issues which arise from the case. settlement proposal setting out the terms on which that party is prepared to settle the matter. The other party As a general rule, leave to appeal will be granted where can then accept the proposal, reject the proposal or there is a reasonable prospect of another court coming make a counter-proposal. If the claim is settled then the to a different decision. parties will generally record the terms of the settlement in a written settlement agreement.

08 09 The Trial Expert Witness Execution of Judgments Execution

The focus of any action is the trial itself. The trial is the An expert witness is a person who, either by way Once judgment is obtained in favour of a party (the Where a party has been ordered to pay a sum of money, hearing by the court of evidence relevant to the dispute. of qualification or experience or both, has specific judgment creditor), the party against whom judgment and he fails to do so, then the other party will be A single judge will be allocated to hear the matter. knowledge in a particular area which is outside the is granted (the judgment debtor) will either willingly entitled to execute against his property. Generally, the party making the claim bears the onus knowledge or experience of the court. An expert comply with the judgment or be unwilling or unable to of proving its claim. As such, the plaintiff usually starts witness will be called to express an opinion on the issues do so, for whatever reason. Execution is the process in terms of which the judgment with its evidence first. Any claim must be proved on a falling within his field of expertise. debtor’s property is attached by the sheriff and sold balance of probabilities. There are two forms of judgment, namely where the by public auction in order to raise funds to satisfy Prior notification must be given to the other party that court orders the judgment debtor to perform some act, the judgment. Property which may be attached can Counsel for the plaintiff will usually give an opening expert evidence will be relied upon in order to allow the or where the court orders the judgment debtor to pay a be movable, immovable or incorporeal (i.e., share address to the judge. This is intended to provide the other side time to study the evidence and to properly sum of money. The remedies to enforce compliance with certificates or rights of action). However, execution judge with an overview of the case. challenge the substance of the expert’s report through the court order differ in these two situations. will take place first against the movables and thereafter an informed cross-examination. against any immovable property. Oral evidence is presented by witnesses for each of the Where a judgment debtor has been ordered to perform parties. These witnesses may be cross-examined by the Prior notification is given to the opposing party in the some act, and he fails to do so, the judgment creditor Where an appeal is pending this suspends the execution opposing side and thereafter re-examined by the counsel form of a written notice which must be delivered at can apply to the court for an order declaring the of the judgment until finalisation of the matter. who led the witness. least 15 days before trial. This notice must give the name judgment debtor in contempt of court and the judgment and occupation of the expert. At least 10 days before debtor may in those circumstances be committed to jail. If the judgment debtor does not have sufficient Unless there has been agreement at a pre-trial the trial, a summary of the expert’s opinion must be In some cases, the court may order a third party, such as executable property, then another means of collecting conference to the contrary, a document must be proved delivered to the other side. This must set out the opinion the sheriff, to perform the act required of the judgment the money owed will need to be relied on. Since in this by a witness who can testify to its origin and content. of the expert and the facts on which the opinion is based. debtor on its behalf, such as to sign documents to instance the judgment debtor is technically insolvent, transfer property. the judgment creditor may wish to apply for the Judgment is generally reserved and handed down once sequestration of the judgment debtor’s estate (where the the judge has had an opportunity to consider the matter. Subpoenas debtor is an individual), or apply for the winding-up of In less complex matters judgment may be handed down the judgment debtor (where the debtor is a company). immediately after completion of oral argument. Generally witnesses will attend trial to give evidence voluntarily. However, there may be times when a witness In execution of a judgment, the following occurs: will be unwilling to co-operate and appear in court. In this instance, a subpoena may be issued by the registrar A writ of execution is issued by the registrar of the of the court, at the request of a party, and served on court. This is a document ordering the sheriff to attach the witness by the sheriff. A subpoena is a document the necessary property of the judgment debtor. which compels the witness to appear at court. It is a criminal offence to disobey a subpoena. The sheriff will then serve the writ on the judgment debtor at his home or place of business. The sheriff will The subpoena informs the witness when and where to then request satisfaction of the debt. Sometimes the appear and may also require the witness to bring to judgment debtor will at this point pay the amount owed court certain documents relevant to the matter. as well as the costs incurred in obtaining the writ. If this happens then the attachment of his property is no longer necessary.

If the writ is not satisfied, the sheriff will ask the judgment debtor to point out movable property to be attached. The sheriff should attach sufficient property to satisfy the judgment and costs.

10 11 The sheriff will then prepare an inventory listing the Once a judgment is granted by a South African court items which have been attached. This will then be given Garnishee Orders Enforcement of Foreign to enforce a foreign judgment it has the same force to the attorney who may, at that stage or thereafter, and effect as any other judgment and is enforced in the A garnishee order is another means by which the Judgments instruct the sheriff to take the items listed in the same way. judgment creditor may enforce a judgment. A garnishee inventory into his custody and sell them. order allows a judgment creditor to recover a judgment As a general rule, the judgment granted by a court in a The Enforcement of Foreign Arbitral Awards Act provides The sheriff will then sell the judgment debtor’s property debt by attaching a money debt owed to the judgment foreign country will have no direct operation outside that a foreign arbitral award may be made an order of by public auction until an amount has been raised that debtor by a third party (the garnishee). that country. However, there are circumstances under court in South Africa and thereafter enforced in the same will satisfy the judgment and costs. This is done after which a foreign judgment may be recognised by a court manner as a local judgment. South Africa is a signatory due advertisement in suitable newspapers. in South Africa and where a judgment given by a South African court may be enforced in another jurisdiction. to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, otherwise known as the New These circumstances will exist on the basis of either a York Convention, which is widely considered to be the treaty between the countries concerned, a piece of foundational instrument for international arbitration. legislation, or on the basis of the common law of the It requires the domestic courts of state parties (i) to state in which enforcement of the judgment is sought. give effect to private agreements to arbitrate; and (ii) to recognize and enforce arbitration awards made in other In determining whether a South African judgment can be state parties to the New York Convention. enforced in a foreign country, the laws of that country will need to be examined. Generally a judgment creditor will have to apply to the relevant court in the country to apply for an order recognising the judgment. A foreign country will be approached generally on the basis that some sort of comity exists between the two countries.

In determining whether a foreign judgment can be enforced in South Africa, the general rule is that in terms of comity, a foreign judgment can be relied upon as a cause of action. The foreign judgment creditor would issue a provisional sentence summons in South Africa, and the court may then grant provisional sentence in order to bring about its recognition. This will only be done if the court is satisfied of the existence of certain factors, including whether the recognition of the judgment would infringe on public policy.

According to the Protection of Businesses Act, certain foreign orders, judgments, interrogatories or arbitration awards will not be enforceable unless the Minister of Trade and Industry has consented. These orders are widely defined as those which have been handed down in connection with any mining activity, any type of production, possession of any tangible property and almost any other act or transaction in, outside, into or from South Africa. The Minister’s consent, in practice, is rarely withheld.

12 13 The Application Procedure Calculation of Recovery Of Costs A notice of intention to tax must then be delivered to the other party. This notice will inform the opposing party Also known as motion proceedings, the application Time Periods At the end of the trial or application, the court will that it has 10 days to inspect the documents or notes procedure is based on the exchange of affidavits. Unlike hand down judgment and will make an order as to who pertaining to each item on the bill and 20 days to file a the trial action, the usual rule is that no witnesses Time periods for the delivery of documents are must pay the costs of the trial or application. This is at notice of intention to oppose the bill. If no such notice is appear before the court to give evidence. The party calculated by using “court days”, which exclude the court’s discretion. Costs will generally be awarded given within the prescribed time period then the matter bringing the application is known as the applicant, and weekends and public holidays. in favour of the successful party. Although the purpose may be set down for taxation before a Taxing Master the party opposing the application is the respondent. of such an order is to indemnify the successful party for without further notice to the opposing party. If the bill The period 15 December to 15 January in every year the expenses it has been made to pay in order to initiate is opposed then a notice of taxation must be sent to the To commence proceedings, the applicant will issue a is regarded as of period of dies non, literally meaning or defend the litigation, in practice only a portion of opposing party to inform them of the date and time on notice of motion, which sets out the applicant’s claim “no days” and these days are not included in the time the costs are recoverable. which the bill will be taxed before the Taxing Master. and the relief sought. An affidavit which supports period allowed for delivering an appearance to defend the notice of motion is attached and is known as the or a plea. There are two basic costs orders which can be awarded At the taxation of the bill of costs, the Taxing Master founding affidavit. Supporting documents are attached by a court: will go through each item, with reference to the tariff, to the affidavit. The notice of motion advises the and decide whether it should be allowed, disallowed or respondent that if it wishes to oppose the application, it Party and party costs, which are the necessary and reduced. What is allowed by a Taxing Master is usually must give notice of its intention to do so within 5 days proper costs which have been incurred by the successful very significantly lower than the actual costs incurred. after it receives the applicant’s notice of motion and party. This is the most common award given; and This is due to the tariff being outdated and bears little founding affidavit. Attorney and client costs, which allows for the recovery relation to the rates charged by most attorneys and because certain costs are not recoverable under the tariff. After the respondent’s notice of intention to oppose of more costs than party and party costs and is usually has been delivered, the respondent then has 15 days to a punitive award. deliver an answering affidavit in which the allegations made by the applicant in its founding affidavit will be In order to determine the costs due to the successful answered. The applicant may then, within 10 days, litigant, a bill of costs must be drawn up. This can be deliver a replying affidavit if it wishes to respond to any done by an attorney or by a costs consultant. Generally allegations made by the respondent in its answering it is more cost effective for a cost consultant to draw affidavit. The applicant may then apply to the registrar up the bill. A cost consultant will usually charge a for a date for the hearing. percentage of the total of the drawn up bill.

All facts should be included in the affidavits as it is not The bill of costs will, depending on the order granted, possible to place further evidence before the court at set out all of the costs incurred by the litigant from the hearing without leave of the court. In addition, all the inception of the matter to its finality. This includes documents relevant to prove or disprove a party’s case attorney’s fees and disbursements such as counsel’s fees. must be attached to the affidavits. The bill is drawn in accordance with a High Court tariff which provides for a set amount which can be claimed Since all evidence is placed before the court in in respect of each item included in the bill of costs (e.g. affidavits a number of procedures that take place in there is a maximum amount allowed for drafting a letter action proceedings are not applicable in application or making a telephone call, and a fixed hourly rate at proceedings. The hearing before the court is generally which attorneys fees can be recovered). limited to oral argument by the counsel for the parties. However, the court may in certain circumstances refer Once the bill of costs has been drawn it is sent to certain issues or, in special circumstances, the entire the opposing party. The opposing party can then matter, to oral evidence. decide whether it wants the bill to be taxed before the Taxing Master of the High Court or whether it is As in trial proceedings, judgment is likely to be reserved wants to settle the claim for costs, either in full or and handed down at a later date after the judge has had by negotiation. This will sometimes happen when the an opportunity to consider the case. In less complicated opposing side does not wish to incur the additional matters judgment may be handed down immediately costs associated with taxation. after oral argument.

14 15 Judgment granted Defended Action Proceedings WARRANT OF APPLICATION FOR EXECUTION LEAVE TO APPEAL (15 days)

Summons LEAVE TO APPEAL REFUSED

Notice of intention to defend APPLICATION End of case LEAVE TO APPEAL GRANTED (10 days) to sca/CC

APPLICATION APPEAL APPEAL summary of judgment REFUSED DISMISSED UPHELD (15 Days)

Warrant OF End of case EXECUTION End of case Warrant OF LEAve to plea and counterclaim EXECUTION defend (20 days)

replication and plea to counterclaim (15 days) Claim dismissed

further pleadings APPLICATION FOR (10 days) End of case LEAVE TO APPEAL (15 days)

discovery and other pre-trial procedures LEAVE TO APPEAL REFUSED

APPLICATION Trial LEAVE TO APPEAL GRANTED End of case to sca/CC

APPLICATION APPEAL APPEAL REFUSED DISMISSED UPHELD

Warrant OF End of case End of case EXECUTION

16 17 Judgment granted Basic overview of Litigation in the High Court – Opposed APPLICATION FOR WARRANT OF Motion Proceedings LEAVE TO APPEAL (15 days) EXECUTION

LEAVE TO APPEAL REFUSED

NOTICE OF MOTION AND APPLICATION LEAVE TO APPEAL GRANTED FOUNDING OF AFFIDAVIT End of case to sca/CC

NOTICE OF INTENTION TO APPLICATION APPEAL APPEAL OPPOSE (5 days) REFUSED UPHELD DISMISSED

ANSWERING AFFIDAVIT Warrant OF (15 days) End of case End of case EXECUTION

REPLYING AFFIDAVIT Claim dismissed

NOTICE OF SET DOWN APPLICATION FOR LEAVE TO APPEAL (15 days) End of case

Hearing

LEAVE TO APPEAL REFUSED

APPLICATION LEAVE TO APPEAL GRANTED End of case to sca/CC

APPLICATION APPEAL APPEAL REFUSED UPHELD DISMISSED

Warrant OF End of case EXECUTION End of case

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