Civil procedure in South Africa

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Civil Procedures in South Africa are the formal rules and standards followed by the courts of the country when adjudicating civil proceedings (as opposed to procedures in criminal law matters). The domain of law is widely divided into substantive and procedural laws. Substantive law is a law that defines the content of rights and obligations between legal subjects; the procedural law regulates how rights and obligations are enforced. These rules govern how a lawsuit or case may commence, and what type of process service is required, together with the types of defenses or case statements, movements or applications, and orders allowed in civil cases, time and manner of deposition and discovery or disclosure , execution of trials, assessment process, various solutions available, and how courts and clerks function.

Video Civil procedure in South Africa

Source

Sources of civil procedure in South Africa can be found in the Magistrates Court Rules and Regulations, the High Court Act (which repealed and superseded the Supreme Court Law), Uniform Rules of Court, jurisprudence, court practice rules and other laws.. The notice should also be taken from the Seventeen Constitution Amendment Act. Since its founding in 1985, the Council of Rules alone has the competence to make regulations for the courts.

Constitution

The Constitution of the Republic of South Africa, 1996, as the supreme law of the Republic, provides an overall framework for civil procedure; The Constitution has been responsible for significant changes to civil procedures since its inception in the 1990s, as in, for example, debt collection issues, access to justice and prescriptions, particularly with respect to litigation against the state.

Section 8 applies Chapter 2 of the Constitution, Bill of Rights, to "all laws". Therefore, litigation can not be carried out without considering article 36 of the Constitution, the limitation of the clause; and some rights of Chapter 2 are directly related to civil procedure law: the right to equality before the law (section 9), for freedom and security (12), for property (25), to have access to adequate housing (26); the right to have access to justice (34).

Maps Civil procedure in South Africa

Court

System

The South African court system consists of lower courts, including adat courts, and other judicial and quasi-judicial bodies established by law; the superior courts, which the High Court designates as the Constitutional Court, the Court of Appeal and the Court of Appeal; and special courts such as the Little Claims Tribunal, the Labor Court, the Competition Court of Competition, the Tax Court, the Land Claim Court, and the Electoral Court.

Different procedures apply in different courts. There is little difference between the High Court procedure and those in the Court of Justice; save where otherwise stated, it is safe to assume that the form and content of the process are the same. It is important to note, however, that both courts have their own laws and court rules of empowerment. The law, in each case, sets out what types of disputes each court can hear, and rules determine how disputes will be brought to justice: that is, the form of defense and the deadline.

Magistrate Court

Court of judges is a lower court in South Africa. This is the so-called "creature of the law", governed by and made under the Magistrates Court Act, and therefore has no inherent jurisdiction. This means that they can only hear things that are determined by the Act. There are two types: Magistrate District Court and Regional Court. The Republic of South Africa is divided into magisterial districts and regional divisions, and each has a court of judges. The Regional Court was previously only a criminal court; However, since August 2010, it also has civil jurisdiction. The problem in the court of judges is led by a judge under the direction of a chief judge.

Section 4 (3) of the Magistrates Court Law provides that all proceedings issued in a court of justice apply throughout the country.

In the case of the Seventh Constitution Amendment Act, the Court of Justice shall be renamed "Lower Court," and the presiding judge, known as "Judge of the Lower Courts," to be appointed by the Judicial Service Commission. It is estimated that both the Seventh Constitution Amendment and the High Court Bill will be announced in 2012.

High Court

The term "Court of Appeals" is misleading, because it shows that there is only one, whereas in reality there are many, divided into provinces (CPD, ECD, NCD, TPD, NCP, OPD) and local divisions (WLD, DCLD, SECLD).

The Court of Appeal enjoys "inherent jurisdiction", which means that it derives its power from general law (though the laws of the law do not modify these forces). This is because of the inherent jurisdiction that the High Court can hear any matter, while the lower courts are more limited. Inherent jurisdiction will be made to prevent misuse of the law, which ultimately exists to facilitate the administration of justice. It should be noted that the inherent jurisdiction is incorporated into section 173 of the Constitution of the Republic of South Africa: the present courts can not exercise jurisdiction beyond the Constitution.

Matters in the Court of Appeal are led by a judge under the leadership of the Presidential Judge. The administration is headed by the High Court Clerk's office, whose job is similar to that of the court clerks.

Supreme Court of Appeal

Supreme Court of Appeal (SCA), which is located in Bloemfontein, is the highest court in cases of appeal without a constitutional basis. The things at SCA are led by judges under the leadership of the President of the Court of Appeal. In the case of the proposed amendments in the Law on Amendments to the Constitution Seventeenth Constitutional Court shall be the highest court in connection with all things (not just where a dot constitution raised), so leave to appeal against the decision of the high court will be given directly to the Constitutional Court if this is considered for justice. SCA will continue to exist; indeed, the workload will be increased, because it has to deal also with the appeal of a court that has a similar status with the Court of Appeal, like the Competition Tribunal and the Labor Court.

Constitutional Court

This is the highest court in constitutional matters. It is located in Johannesburg and is led by judges under the presiding judge.

Personnel

Due to the volume of administrative work involved in court matters, each court has a comprehensive administrative system. The key officer in civil affairs is the Clerk or the Court Clerk. This official performs administrative duties such as issuing summons, accepting a defense, compiling a court reel and keeping records, and also having a duty to record assessments in certain matters.

In practice, the role of the Clerk and Registrar is often covered by the same person, who wears a different hat depending on whether he is taking care of the issue of the lower court or the district court.

The sheriff of court is a legislative creature, created by the Sheriff's Act, which came into force in 1990. Its jurisdiction is specific, and its duties are set out in section 14 of the Magistrates' Court of Justice and in the Rules. He has the power to deliver and serve court documents and judgments, to execute warrants and to make arrests. While clerks or registrars play a largely administrative role, the sheriff is charged with more practical matters.

Finally, there are legal representatives and chief officers.

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Pre-litigation

Civil disputes are possible and are usually divided into three stages:

• pre-litigation;
litigation
• ; and
• post-litigation.

The pre-litigation stage involves a particular preliminary investigation: to be, for example, whether there is a case, the type of action to take, the identity of the person to be pursued, how much, by whom, and where the court - everything, that is, the point at which the dispute is actually referred to the court. It may also involve correspondence with the opponent and sending a letter of request.

Cause of action

One of the first questions asked is on what basis the claim was established; what, in other words, is the cause of the action? The cause of action is very important in identifying the elements that must be proven to be successful with the claim. It is therefore a substantive law investigation, helping to determine the proper civil procedure to follow. Examples include breach of contract and damage in offense. The best way to deal with a problem is to identify the cause of the action with as much of the particularity as possible. In case of breach of contract, for example, one should identify the type of offense, either false or mora debitoris or something else. A set of facts may reveal some of the causes of the action: In the case of a motor vehicle crash where a breadwinner dies, a claimant can sue both for damage to the vehicle and for losing support.

Locus standi

Before a party can sue in court, he must prove that he has the right to demand. This is determined by two questions:

1. whether a particular person or legal person is the right party to be prosecuted; and
2. whether the person has the ability or capacity to demand.

Grounds

Under general law, a plaintiff has the right to prosecute if he can demonstrate that he has a direct and substantial interest in the matter. The requirements are as follows:

• the plaintiff must have sufficient interest, not just the technical ones;
• his interest must not be too far;
• his interests must be real, not abstract or academic; and
• current interest, not hypothetical.

In action under the Bill of Rights, the grounds under which a litigant may have a locus stand are listed in article 38, in which case the following may file a lawsuit:

• anyone who acts on his or her own behalf;
• anyone acting on behalf of others who can not act on their own behalf;
• anyone who acts as a member of, or for the benefit of, a group or group of persons;
• anyone who acts in the public interest; and
• an association acting for the benefit of its members.

Capacity

A person may be the right person to file a lawsuit, but he may still lack the capacity to sue. The capacity to determine the title of litigation is not only to prosecute, but also to be prosecuted. The general rule is that natural and juristic people have the capacity to demand. However there are some exceptions:

• minors;
• crazy;
• magical; and
• insolvents.

It is also important to pay attention to the following specific positions:

• judge;
diplomat
• ;
• fugitive from court;
• trust; and
• partnership.

Jurisdiction

Once a person has decided what the cause of his action is, and who will institutionalize the claim, he can determine which court will be prosecuted. The general principle in jurisdiction is that the plaintiff has a choice, because he is dominus litis . There are various factors that can affect where a case will be heard:

• place of residence;
• the cause of the action;
• where the dispute occurred;
• the quantum and the nature of the claim;
• approval;
• property location; and
• other factors.

Very often there will be more than one court with jurisdiction. In such a case, the plaintiff can easily choose which court to sue. He must ensure, however, that he minimizes his own costs. Jurisdiction is dealt with in the Magistrates Court Law and the Supreme Court Law.

Residence

In the case of section 28 of the Magistrates Court Act, the court has jurisdiction over all persons within its jurisdiction and all property within its jurisdiction. It is evident from this section that the court has jurisdiction over the following:

• anyone who lives, is employed in or conducts business within a district, where "person" includes country, legal entity, city, and company, and where the key is permanent, so that one is employed for a short time , or visiting a place for the short term, can not be said to "stay" there;
• any partnership with his or her business premises in the area, or whose members are located in the district, which allows a person, regardless of general law, to demand a partnership on his behalf; and
• any person with regard to any proceedings relating to any action or proceeding institutionalized in court by the person himself, handling the case in which the plaintiff sued from an incorrect court and was met by a counter-claim. Plaintiffs in the convention can only proceed in the wrong court if the claim is incidental - that is. arises from the same fact - as the original claim.

Cause of action

Section 28 also provides jurisdiction over a person, regardless of residence or occupation, if the cause of the action appears fully within the jurisdiction of the court.

Where disputes arise

The court has jurisdiction in respect of section 28 on any party to the interpleader process if

• the creditors of the execution and each plaintiff on the subject resides, conducts business, or is employed in the area;
• the subject matter has been attached by the court; and
• all parties agree.

The interferader process occurs when one of the parties intervenes in the execution process, usually because of the inherent property when it is in the possession of the other party belonging to it. Thus, an interludader call is issued to prevent the sheriff from selling the property of the first party.

Quantum and nature of the

District courts can only hear problems with quantum up to R200,000. Local courts can hear the problem with amounts up to R400,000. One can not claim more than this amount in this court; nor is there any institutionalized claim whose value is more than this amount.

The court may hear the following cases:

• the transfer or transfer of movable or transferable property;
• claim for ejectment;
• actions for the determination of road rights;
• claims based on liquid documents or mortgage bonds;
• actions arising from the credit agreement;
• actions arising out of section 16 of the Matrimonial Property Act;
• actions include applications for close company liquidation; and
• another action in which the quantum is below the stated number.

There are certain things that can not be heard in a court of judges. This is handled in section 46 of the Act and includes

• matters concerning the validity or interpretation of wills or other evidence documents;
• things in which a person's status is affected;
• things sought with the decree of eternal silence; and
• things that involve certain performance without alternative damage, except
  • rendering accounts where claims do not exceed specified monetary jurisdictions; and
  • the transfer or transfer of the property, movable or immovable, in which the property value does not exceed the specified amount.

Approval

The court has jurisdiction over the defendant that arises and does not object to its jurisdiction. A defendant who fails to deny jurisdiction in his petition is deemed to have consented to jurisdiction. Note, however, that there may be some exceptions, and that such defendants can only consent to jurisdiction over the person and can not agree where the court has no jurisdiction in any event.

Property location

Any person who owns immovable property situated within the territory of the court jurisdiction, in which the act relates to the property or the mortgage bond on the property, is subject to the jurisdiction of the court.

Other factors

Section 30 bis deals with court orders for property attachments or persons to find jurisdiction. This usually happens where the defendant lives outside the Republic and there is another basis for court jurisdiction.

Jurisdiction in High Court

The Constitution, in section 169, allows the Court of Appeal to hear any problem except

• cases that can only be heard by the Constitutional Court; and
• cases that have been established by an act of parliament to another court with a status similar to that of the Court of Appeal.

Otherwise, the Court of Appeal has jurisdiction over all persons and all causes of action arising within its jurisdiction. There are three common reasons for jurisdiction in the Court of Appeal:

1. domicile ( domicile ratio );
2. cause of action ( ratione res gestae ); and
3. property is located within the court area ( ratione rei sitae ).

The Court of Appeal jurisdiction is founded on the doctrine of effectiveness, which refers to the principle that plaintiffs must demand out of court that would be most effective in providing an assessment: that is, the best courts are positioned to enforce judgments.

Request

In certain cases, requests are required as a prerequisite for litigation, failures that cause an action can not arise and any action taken will be premature. Substantive legal rules determine whether demand is an essential element of the cause of action; in general, a request is required in two instances:

1. to solve the cause of the action; and
2. where the law requires it.

Requests can be made orally or in writing. The purpose of the request is to inform the defendant/respondent:

• that a particular legal representative acts on behalf of a potential plaintiff/applicant;
• about the nature and content of the claim;
• that payment or performance is requested;
• about the time period in which the action is required; and
• about the consequences of failure to meet requests

to convince the person to fulfill their obligations and thereby avoid litigation.

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Litigation

Once the pre-litigation issue is resolved, formal litigation proceedings begin. This stage involves

• document exchange;
• time limit;
• in accordance with court rules and procedures; and, finally,
• trial or trial.

In civil procedure, there are two ways to file a lawsuit: action

1. action (or call), brought by call; and
The
2. application (or motion) process, which is launched by means of notification of motion.

If an incorrect form of litigation is used, the court may refuse to hear the case or hear it in its current form, or may allow it to be heard but punish the party using the wrong form when issuing orders for fees.

Court

Action action heard in "court". During the trial, parties try to prove the basic facts formulated in the defense, through witnesses that appear personally and who provide oral, documentary, or real evidence. These witnesses were examined in the head, cross-examined, and re-examined. After all the evidence has been guided, the argument goes to the court of defense and evidence, and the judgment is then submitted.

Application requests are heard in the so-called "court of motion". There are two main types of apps, conflicting apps and unsupported apps. Unloved apps are more common and often only last a few minutes each, so they make the most of the court reels. Rejected apps are set separately for listening, the previous day, and sounded after the unwanted stuff has been handled. Applicants and respondents restrict themselves to simply debating the matter "on paper", which means that the argument is limited to the filing of the law; the procedure resembles the closing argument stage which usually occurs at the end of the experimental action.

Actions

A call has been defined as "a court process where the accused is called upon to enter the appearance to defend the action within the prescribed time and to respond to the claimant's claim, and where he is warned of the consequences of failing to do so." Action actions are marked with a clear distinction between the applying stage, and the stage of trial and evidence.

Pleadings

The application consists of a written or written statement. Except where a party appears personally, he does not compile or sign the defense; this is done by legal representation.

The following is a series of documentary exchanges, called advocates, between parties similar to conversations on paper. The legal representation of each party establishes the material facts of their complaint or defense, as is the case, in the form of a summary. This effectively means that the facts are summarized. Because requests consist of simple statements and do not reveal evidence, they are not recognized under oath. This procedure is strictly regulated by court rules, at least with regard to time limits to be observed. Failure to comply with court rules can be fatal to a case.

Upon completion of the process, the action is set for the trial, in which the parties will endeavor to prove, with evidence, what is referred to in the defense.

Calls

The meeting process is marked by a clear distinction between the pleading stage and the test phase.

There are three types of calls:

1. simple or common calls;
2. combined calls; and
3. temporary sentence call.

A simple call is a document that contains the basis (which is specific from the claim) for the plaintiff's actions on the calling body. A simple call is a High Court equivalent to a regular call in the Magistrate Court. A combined call, on the other hand, has a more detailed and separate document that contains the claim statements and is annexed to the call. As a general rule, a simple call is used where the claim is for debt or demand that is liquidated. There are certain things where combined calls are prescribed: for example, in the case of a divorce. In the High Court, however, it is customary just to use a simple call when one is sure that it is appropriate to do so.

A temporary sentence call is one where the creditor who has a liquid document can sue quickly. If the debtor can not deny the validity of the liquid document, a temporary assessment will be entered against it. Only once he has paid the debt of the verdict as collateral, the debtor will be able to enter into the benefit of the case. In a recent Constitutional Court ruling, it was held that various aspects of the interim call procedure are inconsistent with the Constitution.

The contents of the summons are stipulated in Rules 5 and 7 of the Magistrates Court Law. Similar provisions are listed in Rule 17 of the Uniform Uniform of Court. The call consists of the following:

• warning;
• the form of approval for assessment;
• form of appearance to be maintained;
• notice of interest in section 109 of the Act;
• notices that draw attention to chapters 57, 58, 65A and 65D of the Act;
• the address in which the claimant will receive service from all processes;
• signature;
• party quotes;
• jurisdiction average;
• description of the Claim; and
• prayer.

Calls are usually signed by a lawyer, or by a plaintiff personally if he is not represented. Once it is compiled, it must be issued by the court clerk or the registrar, who places the stamp on the document and gives it the case number. Rule 10 of the previous court order is provided to cancel the call after twelve months if the service has not occurred at that time. There are no such conditions appearing in the modified court rules.

Special Description

The court rules determine both the specific form and the contents. Only from the special things that people can see the basis of the action as well as the help sought. The special statement, then, establishes the facts that give rise to the claim as well as what the plaintiff wants the court to decide.

In a simple call, they appear in abbreviated form, often in a row. Prior to the new Magistrates Rules of Court, a defendant who wanted to find out more did so by leaving the plaintiff of the request for further details in Rule 16 of the Magistrates Court. There are no such rules in the Court of Appeal, and Rule 16 has now also been replaced by Rule 15, which refers to the declaration. This Declaration is a separate document in which the Plaintiff must determine the privilege of its claim in the exact same manner as it did in a joint venture.

Rule 6 of the Magistrates Court Law, and Rule 18 of the Uniform Rules, govern the form and content of the defense in general. In relation to the form, the claim statement shall be divided into several separate paragraphs and numbered consecutively with each averment appearing in separate paragraphs.

In connection with the content, it should include the following:

• a title;
• a statement of fact on which the claim is based;
• jurisdiction;
• cause of action; and
• prayer.

Rule 6 of the New Magistrates Rules of Court and Rule 18 of the Court of Appeal have specific rules on the category of specific cases, that is

• damage;
• contractual issues; and
• marital problems.

Failure to comply with these rules will cause the applicant to become disorganized.

Call dialing service

After the call has been issued by the registrar or court clerk, it can be served. The court service is done by the sheriff. In practice, the lawyer retrieves the original summons with annexures, along with one copy for the defendant (or multiple copies due to the defendant) to the sheriff. The sheriff will send the document to the defendant. There is a specified form of service that is permitted by law. The following general terms apply to document services:

• Services should be performed by a special sheriff appointed to operate in certain jurisdictions.
• Services may not be made on Sundays or public holidays (with some exceptions).
• Services must be made without undue delay.
• Anyone who stops the sheriff from doing his duty is guilty of offense.

Upon arrival at the defendant's home, the Sheriff hands over the defendant a copy of the proceedings and is asked to indicate the original and explain the meaning of the document. The defendant will often sign on the back page of the process to acknowledge receipts thereof. The sheriff is required later to submit to the service refund attorney (if he/she succeeds) or the non-service return (if he/she does not succeed).

Rule 9 of the Magistrates Court, and Rule 4 (1) (a) the Court of Appeal, make provision for methods of service. This includes

• personal service;
• serving agents;
• services in other services in the residence or place of business of the defendant;
• service at the defendant's workplace;
• service in the defendant domicilium citandi et executandi ;
• services by affixing; and
• registered mail service (which only applies to the Court of Justice).

If a party can not serve in one of the following conventional ways, the rules of the Court of Appeal and the Court of Appeal make provision for services through substitute services and edictal citations. The first is where the institutionalizing party applies to the court to provide some form of other services: for example, through newspapers. The latter is often used in process service to a defendant who resides outside the Republic.

Default rating

After the call, with all the annexures, has been presented to the defendant, and the time period required for the response has expired without such response, the party may apply for an assessment. This is an assessment on the grounds that the defendant is in failure. Standard decisions are inserted or granted in the absence of any opposition. This often happens when a defendant fails to file a notice of his intention to defend, but it can also be entered against the plaintiff. In the case of rules, the default rating is given in the following situations:

• when there is a failure to submit notice of intent to defend at all;
• when there is a failure to provide notice of intent to maintain time properly;
• when the notice of intent to defend, even if delivered, is broken; and
• when there is a failure to deliver the request immediately or completely.

The consequences of each depend on the prevailing situation:

• In case of failure to convey notice of intent to defend at all, the plaintiff will only be given his or her request for a default decision in which the call is made and there is an appropriate service.
• The Court Rules of Administrator 13 (5) state that the final notification of the intention to defend shall remain in effect provided that it is sent before a default decision is given. If a notice is sent before a decision is given, but once a request for a default decision has been filed, the claimant is entitled to a fee. Rule 19 (5) of the Court Uniform Rule provides the cost to be granted under the same circumstances.
• Regarding the delivery of a defect notification of the intention to defend, Rule 12 (2) (a) explains the meaning of the term "defect". In this case, the plaintiff is required to give the defendant a chance to fix the defect within five days, failing which the default decision will not be granted.
• In the case of failure to present a defense in time or at all, there are circumstances in which the defendant may fail to file a defense. In such a case, the Magistrates Court ruling 12 (1) (b) and the Court of Appeal 31 (5) (a) requires the plaintiff to give the defendant the opportunity to do so by sending a notice calling on the defendant to file his defense; otherwise he would be banned. This document is called a notification bar.

Requests for standard decisions must be in writing and submitted to the court clerks or court clerks. Request sent to the registrar. If the defendant did not file an application to defend, there is no need to send a copy of this request to the defendant. Such requests consist of the following documents:

• requests for default ratings;
• the original call; and
• service return.

The request shall specify that the papers conform to the purpose of delivery.

Typically a standard assessment can be administered administratively. This means that the clerk or registrar is permitted to grant verdicts, provided the letters are arranged. In the case of no claim for debts or solicited demands, the default judgment can only be obtained after providing oral evidence before the court or giving the same through affidavit. When faced with a request, a judge or officer may do one of the following:

• provide an assessment;
• refuses assessment;
• requesting proof;
• create another sequence it considers appropriate.

Notice of intent to defend

If the defendant decides to oppose the act as set out in a call, he is required to give notice that specifies his intention within ten days of receipt of the summons (or twenty days in the case of the country).

The document specifies the defendant's intention to retain the action, as well as the address at which he will receive all further documents in the process. Sightings must show physical numbers, posts, emails and faxes from the defendant, provided the physical address is within fifteen kilometers (MC) and eight kilometers (HC) from the courthouse. The document must be signed by the defendant or his legal representative. The notice should also indicate the manner in which the defendant prefers all defense and further documents to be exchanged.

Notice is submitted to the claimant by physically sending it to his address, or by registered mail. There is no requirement to send documents through the sheriff. The word "convey" requires that a copy of the document be presented to the opposite party and the original is submitted to the court clerk. In the case of a notice to defend being filed, the plaintiff may, in certain circumstances, submit an application for a summary assessment.

More information

Prior to the amendment of MC rules, Rules 15 and 16 made provision for the defendant, requesting further details for the cause of the action, to clarify any matter in the case of a claim to file a case before him. This rule has now been removed and replaced with relating to proof of declaration and further details for trial purposes. High Court Rules were also removed several years ago.

Declaration

Should the plaintiff choose to issue a simple call (MC) or an ordinary call (MC), and the defendant decides to defend the matter by filing a notice of his intention to defend, the plaintiff is then obligated to file a declaration.

This declaration is similar to a claim statement filed in a combined call and should therefore contain all important statements of cause of action. It will describe in detail the nature of the claims, the legal conclusion that plaintiffs have the right to make facts, and a prayer that sets out the aid to be claimed. If the plaintiff's claim consists of a number of claims, each claim must be dealt with separately in the above-mentioned details.

Rule 15 (1) instructs the plaintiff to submit a declaration within fifteen days from the date of receipt of the notice of intention to defend. If the claimant can not do so, a defendant may, in writing, ask the plaintiff to submit the declaration within five days. If the plaintiff fails to deliver the declaration, the defendant may set down action to hear the next day's notice to the plaintiff; in the event that the plaintiff is in a default state to fix its default or appear on the date, the defendant may apply for forgiveness of the sample or judgment.

Defense

When the defendant is confronted with a call, he has two choices - good

1. to defend substantively by objecting to the benefit of the case; or
2. to technically defend by refusing form and manner of call.

Where the defense was in goodness, the defendant filed a defense; where the defense is in technical trouble, the defendant enters an exception or application to strike out.

Exceptions

Previously, the defendant at MC filed an exception in which he wanted to file an objection based on one of the following reasons:

• Calls do not disclose the cause of the action.
• Calls are vague and embarrassing.
• The request does not comply with the court rules.
• Calls have not been presented correctly.
• The copy of the summons presented to the defendant is very different from the original.

All of the above are the technical aspects of a clear call ex facie (in advance) documents. The modified MC Rule only makes provision for exceptions on the first two grounds. This is in line with the HC rule, which provides an exception on the first two grounds. The rationale of the exception is that the defendant can not be expected to file his defense if he is suspected somehow. The purpose of this exception is to have those calls dismissed and eliminated with the action as a whole.

Exceptions must be raised within 10 days of receipt of the notice of intent to defend.

Exceptions are taken by means of motion notification without affidavit. This sets the base of exceptions, as exactly which aspects of the excluded call against exceptions and grounds for exceptions. Where exceptions are taken on the grounds that the call is unclear and embarrassing, the defendant must state that he has given the plaintiff a chance to correct the cause of the complaint. Prayer appears at the end of the exclusion notice in which the defendant asks the court to enforce the exception and deny the claim.

If an exception is not raised in a timely manner, the defendant can not raise it at a later stage unless he has a leave of absence from the court. Exceptions are usually not raised during the trial. After the notification of an exception has been filed with the claimant, an exception must be registered for hearing. This is usually done on a ten day notice (MC) and five days notice (HC). The formal assembly thus proceeds in which the party making the exceptions (excipients) has the responsibility of proof. The excipient must prove not only that the call is corrupted but also that he will suffer prejudice if the court does not uphold his exceptions.

If an exception is enforced, the plaintiff may be ordered to correct his or her letters or the court may reject the claimant's claim. In such a case, this is only a final judgment if the plaintiff does not then apply for a leave of absence to amend his paper. If the court rejects an exception, the defendant is required to file his or her defense within ten days.

It is important to note the difference between a special request and an exception.

Apps to cross out

The second ground where the objection may be leveled with a call is an application to strike. Earlier in MC, the defendant filed this defense with three reasons:

• Query contains inconsistent variations and is not created as an alternative.
• The request contains references that are argumentative, irrelevant, and useless.
• Requesting it contains conflicting material.

This section now conforms to the HC rules, which provide the app for being crossed out for carrying under the following reasons:

• Invoke contains embarrassing, obnoxious, or irrelevant statements.
• The applicant will be prejudiced in the behavior of his claim or defense if the offending report is not attacked.

The purpose of this application is to remove the embarrassing part of the application.

The form of app notifications for crossing out is very similar to exceptions notifications. The notice indicates the basis on which the application was created and the appropriate part or part of the application submitted by the application. This app is then heard in the same way as the exception.

Plea

One way to defend yourself against a claim is to provide a version of its own event. This is called a plea. This is a document in which the defendant responds to the allegations raised by the plaintiff.

Applications are generally submitted within twenty days after the notification of intent to defend. It was also delivered under other circumstances.

In the case of MC 17 Rule and Regulation HC 22, when drawing up a party request must answer any material allegations. Where a party does not deal directly with an allegation, it will be deemed accepted. In the petition, a party must

• acknowledge it;
• deny the allegations; or
• confess and avoid the allegations.

Applications are listed in a single document.

Custom request

If a party wishes to file some technical error regarding a call, this is done by making an exception or app to strike. These defects are real on the applicant's face. A party may, however, file an objection on the basis of a defect that does not arise from the face of the defense, in which case it will make a special request.

Special applications may be filed on the following grounds:

• recipes;
• lack of jurisdiction;
• lis pendens ;
• locus standi ;
• res judicata ;
completion
• ;
• arbitration;
• fees in previous settings between the same parties are still outstanding; and
• non-joinder and misjoinder.

When a party fails to raise the above issues, the court assumes that the party forgives the other party's failure in such matters.

Applications (usually referred to as applications for benefits) and special applications appear in the same document. Although successful special applications have the effect of rejecting the action, it is not often set before the trial. On the hearing date, the court will only handle special applications before applying for good.

There are no specific references to specific applications either in MC rules or HC rules. However, this is already established in South African law.

Counter

In an appeal, a party only responds to the allegations raised by the plaintiff. However, it often happens that the defendant has a counter-claim. The Regulation provides that a party may file a counter-claim against the plaintiff. A counter-claim is often called a claim in reconvention. The same rules apply as in the claims in the convention. Requests and counter-claims are set forth in the same document or in two separate documents, filed and presented at the same time.

Replication and requests in reconvention

After the defendant submits the petition, the plaintiff may file a replication (or reply) if he wishes to present new facts in response to the defendant's defense. If the claimant simply denied all that the defendant stated in his petition, no answer was required.

If a defendant submits a claim in reconvention (called a counter-claim), the plaintiff will be obligated to file a defense against such counter-claim, which is similar to the defendant's plea for claim in the convention (plaintiff's claim).

Close defense

Rule 21 (MC) specifies when a request is deemed closed. This is called litigation contestatio, and it means that the plaintiffs have reached the finalities in connection with all the facts that form the basis of the claim and defense. After the application is closed, the plaintiff or the defendant may apply for the date of the hearing.

Procedures After Requesting closed

Pre-trial app

Various documents are exchanged before the matter is ready to proceed to court. The three most important ones are

• the discovery of documents;
• pre-trial conference; and
• further details for test purposes.

Rule 23 (MC) and Rule 35 (HC) deals with the invention of documents. Both are substantial and show the importance of this step before proceeding to the trial.

Both the plaintiff and the defendant will usually give each other a request to be found. This notice shall contain sections comprising Rules 23 (1), (6) and (11) of the MC, and Rule 35 of the HC. It asks one of the parties to find - that is, set in the list - all documents, correspondence, etc., they have, and to make these items available to others. The party receiving such a request shall respond by filling in the discovery statement within a specified period. Upon receipt, the recipient may request a copy of any or all of the documents listed herein.

The purpose of the invention is to ensure that the opponent is not caught by surprise in the trial. Any documents that are not found usually can not be used in court except with consent or petition to court.

While the issue will be resolved, for the most part, prior to the closure of the defense, it is possible to reach consensus on some further issues placed in disputes prior to the closure of the defense or not dealt with in the defense. This is usually done at pre trial hearings.

Rule 25 (MC) and Rule 37 (HC) deal with this question. Rule 37 contains a list of issues to be raised at the conference:

• the date, place and duration of the conference;
• any prejudice;
• completion proposal;
• any aspect to be referred to mediation, etc.;
• move to another court;
• issues in rule 33 (4);
• acceptance;
• task to get started;
• agreement on producing evidence by a written statement;
• who is responsible for the copy and preparation of documents; and
• documents to use as proof without any obligation to prove.

While it is generally deemed necessary that all these aspects be covered in pre-trial conferences in the court of judges, this rule does not specify.

Pre-trial conferences are usually attended by legal representatives of the parties. In some courts, the registrar will refuse to give a trial date until a pre-trial conference has been held. While many legal representatives do not consider this rule serious, and only through formalities so to move to trial date, this is not recommended.

The old rules 15 and 16 (MC) deal with obtaining further information before pleading on the plaintiff's case. Because this rule has been removed, the defendant no longer has the benefit of asking a question to clarify certain aspects of the claimant's claim in the early stages of the case. New regulations 16 (MC) and Rule 21 (HC) have been introduced to help this.

In the case of Rule 16 (2), a party may request only further information as required to prepare for the hearing. This should be done at least twenty days before the trial. If a party fails to communicate such matters periodically or sufficiently, the requesting party may apply to the court

• for the sending;
• for action dismissal; or

to attack the defense.

Questions about rewards for fees, due to unnecessary use of rules, are also considered.

This is for a variety of reasons, an important tool. It is recommended that requests be compiled as long as possible before the trial, as failure to comply may result in a variety of interlocuted apps, which may take time. Every effort must be taken to ensure that all these procedures are properly resolved before the date of the hearing, since trial delays can have devastating consequences for both parties.

After the requesting process is completed, the action will proceed to court.

Variations and cancellations of judgment

Usually, once the court has given the final order or decision, the matter is closed. The original court can not review this issue; it is functus officio . However, in certain circumstances, the court may change or cancel its judgment.

High Court

The verdict may vary in two ways in the Court of Appeal:

• in their common legal terms; or
• in terms of Rule 42 of the Court of Appeal.

The Court of Appeal has the authority in the common law to "complement, clarify or correct" their own judgments. This seems to overlap with inherent jurisdiction to regulate their own processes for the sake of justice. By using this power, they have changed their judgment

• to include accessories or important items that the court fails or fails to provide;
• to clarify the ambiguity or ambiguity or uncertainty in the decision (although it may not alter the substance of the judgment or material finding or case outcome);
• to correct clerical or arithmetic or other errors; and
• to fix, change or add to a fee order.

Rule 42 (1) complements the general law by providing certain instances where the court may, either mero motu or in the application by either party, set aside or modify any of its decisions or orders. A more or less common element for all instances of variation or cancellation in this rule is error. The rules provide variations in the following examples:

• with regard to erroneous orders or judgments in the absence of affected parties (as is often the case, for example, with a default assessment);
• with respect to ambiguity or error or patent negligence; and
• in respect of any injunction or judgment given as a result of a common error to the parties.

Standard decisions may be revoked in the Court of Appeal in the following ways:

• in common legal terms in the case
  • fraud;
  • justus error ;
  • the discovery of new documents; and
  • default assessment (if sufficient cause is displayed);
• in terms of rule 42 (1) (newly discussed), when there are errors in some respects; and
• in the case of rule 31 (2) (b), in respect of the default judgment on claims that do not qualify in the provisions of rule 31 (2) (a).

The standard determination of a liquidated claim shall be canceled in the case of either of the common law or of rule 42 (1).

Magistrates Court

Section 36 of the Magistrate Courts Act refers to the "annulment" of a decision. However, the expression "set aside" of a judgment is often seen as a synonym and has been proven in practice. Termination of judgment applies not only in cases where a default decision has been granted, but also in cases where the application is made for the cancellation of the summary decision, as well as in cases where a decision has been granted in the absence of a defendant under rule 60 (3) where the defendant did not provide the specific information requested from him.

Section 36 is similar to the rule of the High Court 42 (1), provided that the court may, on application, cancel or vary

• any assessment that has been granted without the person being granted to it;
• any assessment that has been granted which is not valid ab initio or obtained with fraud or general error for the parties; and
• There is no comparison of whatsoever.

While it may not do the above without the application of anyone affected by the assessment, it is possible, mero motu , the correct patent error in any judgment that has no pending appeal. If a plaintiff in whose decision the default decision has been granted has agreed in writing that the verdict shall be revoked or varied, the court shall cancel or amend the judgment against the request by anyone affected.

Therefore, it does not matter whether the interlocutory decision has been obtained as a result of the defendant's failure to enter the appearance to defend, or as a result of the defendant's failure to plead.

Rule 49 was the subject of extensive amendments in 1997. Previous cases should be used with caution in the interpretation of new rules. In some important respects, new rules appear to revise the position as defined in the old cases.

Regardless of the application for the cancellation of the standard judgment, the procedure by which the party will make the application for the cancellation or variation of judgment in the Magistrates Court is set out in rule 49 (7), which requires that the application be

• bring notices to all parties; and
• is supported by a written statement or written statement that specifies the reason the applicant seeks termination or variation.

If the cancellation or variation is sought on the grounds that the verdict does not apply ab origine , or obtained by fraud or error, rule 49 (8) states that the application must be serviced and filed within one year. after the first applicant has knowledge of the void, deception or error of the sort.

The most common type of app for cancellation, however, is the app for default decision cancellation.

In the case of rule 49 (1), the party attempting to cancel or change the default judgment has twenty days of trial, from the date on which the judgment reaches its knowledge, to serve and apply for cancellation. Rule 49 (2) states that the applicant is deemed to have knowledge of the default assessment ten days after the date of his grant, unless the applicant proves otherwise. This sub-rule places the responsibility on the applicant to refute the presumption and to prove that he has brought the application within a twenty-day period.

An application notification must be provided to all parties in the process. The defendant is required to point out the good reason why the decision should be revoked; alternatively, the court must be sure that there is a compelling reason to do so. The court has wisdom in this regard.

Applications can be created by any party, or anyone else affected. The applicant does not have to be defended by default. Perhaps, for example, that there is a non-joinder. A person may try to override an assessment because he is materially affected by it.

The rule appears to have placed two different but related reasons in which the court may grant a cancellation. The first is "for good reasons shown;" the second is "if satisfied that there is a good reason to do so."

Good reason

"Good cause" has never been properly defined, but it includes an investigation into the existence of prima facie defense, and whether the defendant is breaking the law. In the cases in the previous rule, "good intentions" are held for inclusion

• a plausible explanation for default;
• bona fide defense presence ; and
• evidence that the app was created bona fide .

The first two requirements are set out in the new rule 49 (3), which stipulates that the petition must be supported by a written statement stating the reason for the absence of the defendant or a default, and the defendant's basis of defense of the claim.. It has been argued that "the previous case law is still applicable in this sub-rule, for 'good reason' will only be shown if the explanation makes sense, and the bona fide defense ."

The requirement of the absence of any deliberate standard becomes more problematic. Rule 49 (4) deals with situations in which the defendant wants to cancel the decision when he does not want to continue the process: that is when he is ready to make arrangements to fulfill the verdict. Under these circumstances, a new sub-rule requires the applicant to indicate that he is not in a state of failure and that the verdict has been met, or the arrangement made to fulfill the decision, within a reasonable time after arriving at his decision. or knowledge. "Does this mean," asked Torquil Paterson,

that only under this circumstance that the absence of an intentional standard is a requirement? This issue seems to be debatable. It was conveyed that the absence of an intentional standard applies to all applications, and that it still remains a part of showing "good intentions."

It is also submitted that under the circumstances of regulation 49 (4) the responsibility to indicate the absence of an intentional standard will rest upon the applicant.

With regard to the preceding rules, it was held that the responsibility indicates that the applicant was in an intentional default relied on the respondent: "Whether this is still the case seems to be disputed."

Generally, later, cancellation can not be given if the defendant

• is a deliberate default; and
• can not define prima facie defenses.

This means that, in order to demonstrate a good purpose, the defendant in his written statement must explain the reasons for his absence or failure and indicate the existence of a prima facie defense and satisfy the court that the default is unintentional.

Good reason

The second possibility is that the applicant can indicate that there is "a good reason" to cancel the verdict. The court may invalidate the verdict, ie, "if satisfied that there is a compelling reason for doing so." Paterson writes it,

while this requirement overlaps with 'good intent', it should be given its own meaning. It is explained that 'good reason' relates to wisdom that is broader than that contained in a good purpose with regard to the general equation of the situation.

The prejudices of both parties will be considered along with all the other factors set out above.

Although "good reason" seems to set a lower standard than requirements for a good cause, it has been held that it does not so much lower the requirements for the applicant as it extends the judge's wisdom. Where the applicant fails to demonstrate a good reason, the judge may still grant the cancellation of the mero motu, for the sake of fairness, if circumstances warrant it.

A judge has discretion in case of cancellation, and is not obliged to grant it. The defendant bona fides, whether or not the default is intentional, and the existence of a prima facie defense is all taken into account in implementing that policy, the most important aspect being that the existence of prime fade defense .

Situation

Four different situations may arise:

1. The defendant brings the app to revoke the default rating and wants to defend the issue. This is the most common situation. This can happen, for example, that for some reason the defendant did not receive the call. The next thing he knows is that the sheriff is at his door telling him that a decision has been taken against him. He consults with a lawyer, telling him that he has a good defense for the matter and will surely enter the appearance to defend if he knows about the call. In this case the application must be supported by a written statement, where the reason for the absence of the defendant should be determined a

   Source of the article : Wikipedia