The different types of litigation in practice today are High Court and Magistrate Court litigation. The main difference between the two is the fact that the Magistrates Court has a monetary jurisdiction of R100 000.00 whereas the High Court has unlimited monetary jurisdiction. Further the Magistrate Court is limited in terms of the Magistrates Court Act in its jurisdiction to hear certain matters. For example, only High Court has jurisdiction to hear divorce matters or to grant interdicts. All litigation concerning a persons status, for example insolvency, divorce matters etc is heard only by the High Court.
HOW DOES THE LITIGATION PROCESS START?
The litigation process starts with a consultation with an attorney to determine the merits of the case. If the merits warrant it, summons will be issued and served on the Defendant.
WHAT IS THE DIFFERENCE BETWEEN THE MOTION PROCEEDINGS AND ISSUE OF SUMMONS?
The motion process is a shorter process due to the fact that the dispute is decided mainly by affidavits submitted by both parties. Summons must be issued when there is a possibility of a fact dispute and it will be necessary to give verbal evidence.
HOW SOON MUST SUMMONS BE ISSUED?
Generally most law suits prescribe within three years from the date that the cause of action arose and serving summons on the Defendant, will interrupt prescription.
IN WHAT JURISDICTION SHOULD SUMMONS BE ISSUED?
When deciding in what court to issue summons, usually the residential or work address of the Defendant will be the determining factor.
HOW LONG DOES THE LITIGATION PROCESS TAKE?
Litigation is a timely process due to the fact that attorneys must first exchange the necessary pleadings and only after the last pleading was served, can either the Plaintiff or the Defendant’s attorney apply for a court date.
WHAT HAPPENS AT A TRAIL?
At the trail, witnesses are called to testify and have to go through examination by the attorney who called him or her, must be cross-examined by the attorney for the Defendant / Plaintiff and if necessary be re-examined again by the attorney that called him or her. In a civil case, the onus of proof is a balance of probabilities whereas in a criminal case, the onus of proof is beyond reasonable doubt.
WHAT ABOUT THE COSTS?
The general rule is that the successful party is entitled to his or her attorney’s cost on a party and party scale. Party and party costs is the costs for an attorney that is necessary and reasonable to let justice prevail and are prescribed by the Magistrate Court Rules and the High Court Rules.
WHAT IF I AM DISSATISFIED WITH THE SERVICE GIVEN BY MY ATTORNEY?
Attorneys are bound by strict professional and ethical rules. If a client is dissatisfied with the professionalism of service delivered by an attorney, the client can report the matter to the relevant Law Society who will then investigate the matter.
Due to the fact that each case has different merits, the above is only guidelines and the process might differ depending on the facts of the case.
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