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You Think Outcome. We Think Process. Our Horizons Are As Broad As Your Business Vision

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You Think Outcome. We Think Process. Our Horizons Are As Broad As Your Business Vision BASIC GUIDE TO CIVIL HIGH COURT LITIGATION You think outcome. We think process. Our horizons are as broad as your business vision. The Bowman Gilfillan Africa Group Overview 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.
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