B A S I C G U I D E TOC I V I L H I G H C O U RT L I T I G AT I O N

You think outcome. We thinkprocess.

Our horizons are as broad as your business vision.

OverviewThis 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

senior associates is located at www.bowman.co.za.

Contents

ATTorneys And AdvoCATes 02

THe LeTTer of deMAnd 02

JurIsdICTIon 03

ACTIon or MoTIon ProCeedInGs 03

THe ACTIon ProCedure (TrIAL ProCedure) 04

TrIAL PrePArATIon 10

exeCuTIon of JudGMenTs 17

exeCuTIon 18

GArnIsHee orders 19

enforCeMenT of foreIGn JudGMenTs 20

THe APPLICATIon ProCedure 21

reCovery of CosTs 22

The Bowman Gilfillan Africa Group

Bowman Gilfillan Africa Group is one of Africa’s premier corporate law firms, employing over 400 specialised lawyers. The Group provides domestic and cross-border legal services to the highest international standards across Africa, through its offices in South Africa, Botswana, Kenya, Madagascar, Tanzania and Uganda.

differences in law, regulation and business culture

can significantly increase the risk and complexity

of doing business in Africa. our aim is to assist our

clients in achieving their objectives as smoothly

and efficiently as possible while minimising the legal

and regulatory risks.

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important, the ability to deliver that advice in a

coherent, relevant way combined with transaction

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drafting skills is essential to the supply of high

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The Group has offices in Antananarivo, Cape Town,

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which has offices in Lagos, Abuja and Port

Harcourt. We also have strong relationships and

work closely with law firms across the rest of Africa

which enables us to provide or source the advice

clients require in any African country, whether on

a single country or multi-jurisdictional basis.

We act for corporations, financial institutions, state

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provide clients with the highest standards of service.

In the cross-border arena the Group has extensive

experience in the resources, energy, infrastructure,

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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

Jurisdiction Jurisdiction refers to the authority or competence of a

particular court to hear a matter and to grant relief in

respect of that matter.

It is first necessary to determine whether the High Court

or a lower court (i.e. Magistrate’s Court or small Claims

Court) has jurisdiction to hear the matter. determining

whether to proceed in a lower court or in the High

Court will depend on the type of claim and the value

of the claim. The small Claims Court is competent to

hear matters where the value claimed is below r12 000,

and only individuals may bring claims in this court.

The Magistrate’s Court is constrained to matters where

the value claimed is r300 000 or less. The parties can,

however, agree to the jurisdiction of the Magistrates

Court in claims exceeding r300 000. There are certain

matters which may only be heard by the High Court,

regardless of the quantum of the claim.

once it has been established that the High Court has

jurisdiction, it must be decided which seat of the High

Court is competent to hear the case. As a general rule,

a court will exercise jurisdiction on the basis that the

defendant is resident or domiciled in the area of the

court or if the cause of action arose in that area.

Action or Motion Proceedingsonce a decision has been made to embark on litigation

in the High Court it is necessary to determine

whether to proceed by way of trial (action) or motion

(application) proceedings.

In action proceedings, the person bringing the action

is called the plaintiff, and the person defending the

action is called the defendant.

In application proceedings, the person bringing the

application is called the applicant, and the person

defending the application is called the respondent.

In determining whether to proceed by way of action

or application, the question to be asked is whether a

material dispute of fact is anticipated. If a dispute of

fact is anticipated then generally it is best to proceed

by way of action where witnesses may be called to give

oral evidence at a trial. If no such dispute of fact is

anticipated then application proceedings are probably

appropriate. In an application, the matter will be

determined with reference only to the papers and, as a

general rule, no oral evidence is permitted.

The disadvantage with motion proceedings is that the

evidence is set out in affidavits and cannot be tested

by cross-examination. Consequently, it is difficult for

a court to decide between conflicting versions. The

advantage of motion proceedings is that they are

generally speedier and less expensive than actions.

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.

Attorneys and AdvocatesLike england, south Africa has a split bar system,

consisting of attorneys and advocates.

The advocates’ profession is a referral profession,

which means that advocates cannot accept briefs

directly from clients. The attorney is approached by

the client and it is the attorney who takes instructions

from the client and briefs the advocate. An advocate

(also called counsel) will generally provide strategic

advice, settle pleadings and represent the client in

court or in arbitration proceedings.

Advocates are either senior or junior counsel. senior

counsel, or silks, are advocates who have many years

of experience and who have had the status of senior

Counsel conferred on them by the President. They will

be briefed generally for complex matters where they

have specialised skills and expertise. Junior counsel are

less experienced advocates and will charge substantially

less than senior counsel. Where appropriate, junior

counsel will be briefed alone but, where the matter is

complex or the claim is substantial, it is often necessary

to brief both a senior counsel and a junior counsel.

Attorneys who have obtained right of appearance

may appear in the High Court but in complex and

substantial matters the tradition of utilising counsel

remains prevalent.

When counsel is briefed, the role of the attorney is

to instruct the advocate on behalf of the client, and

advocates may not consult with clients unless the

instructing attorney is present.

The Letter of DemandA letter of demand is generally the first step in the legal

process. While a letter of demand is required in some

instances, it does not need to be sent in all circumstances.

It is, however, usual practice that a letter of demand will

be sent before instituting legal proceedings.

A letter of demand is, as its title suggests, a letter

addressed to the other party demanding, for example,

fulfilment of an outstanding obligation or payment of a

sum of money.

Generally a letter of demand will set out the cause of

action on which the demand is based, and will give the

other party time to comply with the demand. If the

demand is met then no further steps will be taken.

02 03

is an even balance of success between the parties on

the papers, and there is a reasonable prospect that

oral evidence will enable the defendant to successfully

prove his case.

noTICe of InTenTIon To defend

After service of summons by sheriff, the defendant is

generally given 10 business days in which to deliver a

notice indicating his intention to defend the action.

The notice must set out an address for the service of

documents on the defendant. This will generally be the

address of the defendant’s attorney, which must be

within 15 kms of the High Court concerned. Where the

plaintiff’s attorney is further than 15 km from the Court,

the attorney will need to appoint a correspondent firm

of attorneys within 15 kms of the Court, who will act as

a post box for the receipt of court documents.

defAuLT JudGMenT

A plaintiff may apply for default judgment where a

defendant has failed to serve a notice of intention

to defend within the prescribed time or where the

defendant has failed to deliver its plea after receiving a

notice of bar from the plaintiff. Where the prescribed

time lapses, the plaintiff is entitled, without further

notice to the defendant, to apply for final judgment

against the defendant.

Where default judgment is granted, the plaintiff is able

to demand compliance with the judgment.

Where the defendant was not aware of the service

of the summons, it is possible for the defendant, on

learning of the judgment against him, to apply for a

rescission of judgment. This application is supported

by an affidavit which must provide a satisfactory

explanation for the defendant’s failure to give notice

of intention to defend and explaining the nature of the

defence that will be raised.

suMMAry JudGMenT

summary judgment can be sought in certain

circumstances when an action is defended. It is a remedy

which is pursued by a plaintiff seeking speedy judgment

at an early stage without the delay and expense of a trial.

An application for summary judgment must be served

within 15 days of the delivery of a notice of intention to

defend. In most instances the plaintiff will be granted

summary judgment where the defendant has no bona

fide defence and has entered an appearance to defend

solely for the purposes of delaying the action.

summary judgment can only be sought where the

defendant has delivered a notice of intention to defend,

the plaintiff’s case is based on a liquid document or a

liquidated amount of money, the delivery of specified

movable property, or ejectment from property, and the

plaintiff believes that the defendant does not have a bona

fide defence and is merely trying to delay judgment.

There are two ways in which a defendant may defeat an

application for summary judgment. He may give security

to the value of the claim to the plaintiff or satisfy the

court that he has a bona fide defence to the claim.

Where security is provided, the court has no discretion and

must grant leave to defend. Where the defendant maintains

that he has a bona fide defence, the defence must be

explained in an affidavit.

As summary judgment is final courts are often reluctant

to shut the doors to the defendant. Accordingly a court

has a discretion whether or not to allow the defendant

leave to defend the action if it has served an affidavit

that appears to set out a defence.

exCePTIons

Before the defendant delivers his plea (statement of

defence) he may raise defences that do not go into the

merits of the case, but rather to technical legal issues.

This may be done by special plea or exception.

An exception is an objection to a material defect in the

opposing party’s pleadings. Where a defendant wishes to

take exception to a declaration or particulars of claim,

then he must do so within 20 days after the service of

a declaration or 20 days from the date on which the

defendant files a notice of intention to defend. Where

the plaintiff wishes to take exception to the defendant’s

plea, then it must do so within 15 days after the service

of the defendant’s plea.

The Action Procedure (Trial Procedure)THe suMMons

The issue and service of a summons commences the

trial action. The purpose of a summons is to bring the

plaintiff’s claim to the attention of the defendant by

informing the defendant of the nature of the plaintiff’s

cause of action and the claim made. The summons

generally informs the defendant that it has 10 business

days within which to deliver a notice of intention to

defend the action and that failure to give notice within

the prescribed time will allow the plaintiff to apply for

default judgment against it.

There are two types of High Court summonses; a simple

(ordinary) summons and a combined summons. The

nature and complexity of the plaintiff’s claim will

determine what type of summons is used.

A simple summons is used when the cause of action

is based on a debt or liquidated demand. A combined

summons is used when the plaintiff’s claim is not

founded on a debt or liquidated demand. In addition, in

a simple summons, there will be no detailed particulars

of the claim attached, as is the case in a combined

summons. rather, a brief description of the plaintiff’s

cause of action will be given (such as money lent and

advanced), as well as the relief claimed by the plaintiff.

once the defendant delivers a notice of intention to

defend after receipt of a simple summons, the plaintiff

will deliver a declaration, which sets out the cause of

action in more detail. This is similar to particulars of

claim attached to a combined summons.

The particulars of claim, which is attached to a

combined summons, outlines the nature of a plaintiff’s

claim and the relief sought against a defendant. The

particulars of claim will set out a description of the

parties to the action, the background to the dispute,

and will ensure that the claim and all the facts upon

which the claim is based are fully outlined. The

particulars of claim must contain sufficient detail to

enable to the defendant to defend the allegations made

against him and must include a copy of any written

agreement that is relied upon.

A simple summons may be signed by the plaintiff or

the plaintiff’s attorney. A combined summons must

be signed by the plaintiff or by its attorney and an

advocate or an attorney with right of appearance in the

High Court. once signed, the summons is then issued

by the registrar of the High Court concerned. once the

summons has been issued by the Court, the summons is

sent to the appropriate sheriff with instructions to serve

the summons on the defendant at his residence or place

of business. once the sheriff has served the summons,

he will complete a return of service to indicate that

service was successful. A defendant is only deemed to

have received the summons when the summons has been

properly served by the sheriff.

ProvIsIonAL senTenCe suMMons

A provisional sentence summons is an extraordinary

procedure in terms of which a plaintiff in possession of a

document showing an indebtedness for a liquidated sum

of money, for example, a cheque, may obtain provisional

judgment for the amount payable on the face the

document prior to the trial date. The rationale behind

this is that the court will grant a provisional judgment

in favour of the plaintiff on the basis that in issuing the

document in question the defendant has acknowledged

its indebtedness to the plaintiff for the amount stated in

the document. The court must be provisionally satisfied

that the plaintiff will succeed in the principal case.

The advantage of this procedure is that it allows a

plaintiff to promptly recover a money debt from the

defendant. The purpose is to bring proceedings to a

speedy end especially when the defendant does not have

a defence to the plaintiff’s liquid claim. If the defendant

disputes the allegations, the onus is on the plaintiff to

prove that they are true.

The judgment obtained by the plaintiff at the early stage

is provisional and cannot prevent the defendant from

proceeding to the principal case.

In a recent Constitutional Court judgment the

constitutionality of the provisional sentence procedure

was considered.

The Constitutional Court held that the courts should

have a discretion to refuse provisional sentence in

certain limited circumstances; namely, where there

defendant is unable to pay the judgment debt, there

04 05

Trial Preparation WHAT HAPPens AfTer PLeAdInGs Are CLosed?

once all the pleadings have been filed, pleadings are

then deemed to be closed. Between this stage and the

trial a number of important procedures take place. The

most important of these procedures is discovery.

APPLyInG for A CourT dATe

once pleadings have closed the next step is to apply for

a court date from the registrar of the appropriate court.

The plaintiff usually requests the trial date but it may

also be requested by the defendant if the plaintiff fails to

do so within six weeks after the close of pleadings.

dIsCovery

discovery is one of the most important steps in pre-

trial preparation and is based on the principle that a

party is entitled to be notified prior to the hearing of

the matter of all the documentary evidence, including

tape recordings and e-mails, which the opposing party

possesses which are relevant to the matter.

discovery is the procedure in terms of which the parties

disclose to each other all relevant documents and

tape recordings that they or their agents have in their

possession or under their control. discovery is made

by way of affidavit to which a list is annexed listing all

the documents in the discovering party’s possession.

Generally, a party will not be allowed to use any

documents that he has failed to disclose in response to a

request for discovery.

There are however, certain exceptions to need to

disclose relevant documents. These include witness

statements taken for the purposes of the trial,

communications between attorney and client,

communications between attorney and advocate and

pleadings, notices and affidavits in the action.

There are certain other documents which are

considered to be privileged, and which likewise need

not be discovered. These include, amongst others,

communication made in a bona fide attempt to

negotiate settlement and documents which fall within

professional legal privilege.

each party may call on the other party to make

discovery. This is done in the form of a notice requesting

the delivery of the discovery affidavit within 20 days of

receipt of the notice.

Pre-TrIAL ConferenCe

Within a perscribed period before the trial date the

attorneys and counsel representing the parties must

attend a pre-trial conference. The primary purpose of

this conference is to facilitate a discussion between the

parties to find ways of expediting the process by limiting

the issues between the parties for the purpose of trial.

It also provides the parties with an opportunity to settle

the matter before going to trial. A formal minute of the

pre-trial conference is prepared and is required to be

handed to the presiding judge prior to the trial.

seCurITy for CosTs

Where there is a reasonable apprehension that the

plaintiff or applicant will be unable to pay the costs of

the matter if an award is granted against them, then the

defendant may call for security for costs. Although the

court has a discretion, it will probably order security for

costs when:

the plaintiff is neither resident nor domiciled within and

does not own immovable property in south Africa;

the plaintiff institutes proceedings which the court

considers vexatious; or

the plaintiff who instituted the proceedings is litigating

in a nominal capacity and is found by the court to be a

‘man of straw’ behind whom the plaintiff is sheltering.

In terms of section 13 of the Companies Act 61 of

1973, courts had a discretion to order a company that

instituted legal proceedings to furnish security for costs

if there was a belief that the company would not be able

An exception may be raised where, for example; the

pleading is vague and embarrassing (unintelligible,

contradictory or lacking in particularity), or it lacks the

statements necessary to sustain a cause of action or a

defence (it does not contain the material allegations

required for the cause of action or defence to be relied

upon, or the claim relied on is bad in law).

sPeCIAL PLeA

A special plea is a separate, special defence which

either destroys the cause of action or postpones its

operation. A few examples of defences which may be

raised as special pleas are as follows: that a party with

an interest in the matter has not been cited as a plaintiff

or defendant, that the matter has been bought in the

incorrect court, that the plaintiff is not competent to

bring the matter to court, that the time period within

which to bring the action has prescribed, that the

same matter is already before a competent court, or,

where there is a contractual dispute, that there is an

arbitration clause in the contract and the matter must

be referred to arbitration and decided by an arbitrator.

PLeA

A plea (statement of defence) is the defendant’s response

to the plaintiff’s summons and must be delivered within

20 days after the defendant has delivered its notice of

intention to defend.

failure to file a plea in the prescribed time period entitles

the plaintiff to deliver a notice of bar calling on the

defendant to deliver the plea within 5 days. should the

defendant fail to do so then the defendant is barred

from delivering his plea and the plaintiff may then apply

for default judgment as the defendant has failed to

defend the claim. In practice however, before barring

the defendant, the plaintiff’s attorneys will as a courtesy

send a letter to the opposing attorneys demanding

that the outstanding plea be delivered within a certain

period of days.

The plea must set out the defence upon which the

defendant relies and must contain a paragraph-by-

paragraph reply to each of the allegations made by the

plaintiff in its particulars of claim. The defendant will

admit, deny or confess and avoid each of these specific

allegations. Where a defendant fails to deal with a

specific allegation, then the allegation is deemed to be

admitted.

THe CounTerCLAIM And THe PLeA To THe CounTerCLAIM

A counterclaim or claim in reconvention is the

defendant’s separate cause of action against the

plaintiff. If a defendant wishes to bring a counterclaim,

he is obliged to do so when filing his plea.

The plaintiff does not need to deliver a notice of

intention to defend the counterclaim, but the plaintiff

must then deliver a plea to the counterclaim, in which

the plaintiff must set out its defence to the counterclaim.

The plea to the counterclaim must be delivered at the

same time as a replication, if one is to be delivered.

THe rePLICATIon

A replication is the plaintiff’s response to the

defendant’s plea and is necessary only when the plaintiff

wishes to place new facts before the court or clarify

issues raised in the counterclaim.

InTerLoCuTory ProCedures

Interlocutory procedures are concerned with resolving

side-line issues prior to the trial taking place. They

are always brought by application and are dealt with

separately from the main trial.

06 07

Appeals and Reviewand Procedure once judgment is delivered, a litigant that is

dissatisfied with the judgment granted may, in certain

circumstances, apply to have the judgment set aside by

instituting either appeal or review proceedings.

APPeALs

Where a dissatisfied litigant is of the view that the

judgment ought to be set aside because the court

reached the wrong conclusion on the facts or law,

the appropriate remedy is an appeal. since an appeal

involves a re-evaluation of the court’s decision, it will be

based solely on the record of the proceedings.

Appeal proceedings are instituted by lodging an

application for leave to appeal. Leave to appeal is

not granted automatically and the party bringing the

application must first apply for leave to appeal to the

court that handed down the decision. Leave to appeal

must be sought within 15 court days after the date

of delivery of the judgment or order in question. The

application for leave to appeal will then be set down

and heard by the same judge who presided over the

proceedings in question.

Where leave to appeal is granted it will either be to

the supreme Court of Appeal (“sCA”) or to a full bench

(usually three judges) of the High Court concerned. A

further appeal may lie from a full bench to the sCA and

from the sCA to the Constitutional Court, where there

are constitutional issues which arise from the case.

As a general rule, leave to appeal will be granted where

there is a reasonable prospect of another court coming

to a different decision.

revIeW

A decision of a court may be taken on review where

the procedural correctness or fairness is questioned.

It is the process in terms of which the proceedings of

a lower court are bought before a higher court as a

result of certain irregularities. As it is unlikely that the

irregularity will be apparent from the record, in review

proceedings external evidence will be required to prove

the irregularity.

The proceedings of a lower court may be bought under

review on the basis of:

absence of jurisdiction on the part of the court; or

interest in the cause, bias, malice or corruption on the

part of the judicial officer; or

gross irregularity in the proceedings; and / or

the admission of inadmissible or incompetent evidence

or the rejection of admissible or competent evidence.

review proceedings are brought by way of an

application. A notice of motion and founding affidavit

must be delivered which sets out the grounds, facts and

circumstances upon which the review is alleged.

to pay the costs of the other party. section 13 has now

been repealed by the Companies Act 71 of 2008 and

there is no equivalent provision. recent case law has

held that, despite the repeal of section 13, the courts still

have an inherent power to regulate their own process.

Accordingly, each case will be decided on its own set

of facts. If there appears to be a necessity for security

for costs then the courts may grant security for costs

against a company.

A notice calling for security for costs needs to be

delivered as soon as possible after proceedings

commence. This notice must set out the grounds for

requesting security for costs. on receipt of this notice,

the plaintiff may either provide the requested security,

dispute the amount of security requested, or dispute

liability to give such security. In the latter case the

party who requests security can apply to the court for

an order that security be furnished. If only the amount

of security is in issue, the registrar will fix the amount.

The main proceedings can, by order of the court, be

suspended until any order granted is complied with.

The amount to be provided as security is generally

determined by an official in the office of the registrar

known as a taxing master. A plaintiff or applicant may

oppose the amount requested before the registrar. A

plaintiff’s failure to comply with an order for security for

costs may lead to a dismissal of the application or action.

seTTLeMenT

A dispute between parties may be settled at any

time prior to judgment. In practice, one party (often

the defendant) will approach the other party with a

settlement proposal setting out the terms on which that

party is prepared to settle the matter. The other party

can then accept the proposal, reject the proposal or

make a counter-proposal. If the claim is settled then the

parties will generally record the terms of the settlement

in a written settlement agreement.

A settlement proposal can either be made on the record

or off the record.

Where a settlement proposal is made off the record

and the proposal is not accepted, then the proposal

may not be used or referred to in court or arbitration

proceedings. This is because the proposal has been

made with a bona fide intention to settle the matter

and the party making the proposal should not be

prejudiced during the trial or arbitration if the

proposal is not accepted.

sometimes a party may wish to make an on the

record settlement proposal. In these circumstances,

if the proposal is not accepted, then either party

may refer to the proposal during the proceedings.

The advantage of making an on the record settlement

proposal is that it illustrates to the judge that the

party making the offer is bona fide and has made

every attempt to settle its dispute with the other

party outside of the court or arbitration.

A further settlement option available to a defendant is

an offer to settle in terms of rule 34 of the rules of the

High Court. The rule provides that, in an action where a

sum of money is claimed, the defendant may at any time,

unconditionally or without prejudice, make a written

offer to settle the plaintiff’s claim, which must be signed

by the defendant himself or his attorney, who must be

authorised in writing to do so. The offer will only be

brought to the attention of the court after judgment is

granted and if it becomes relevant regarding costs.

08 09

Execution of Judgmentsonce judgment is obtained in favour of a party (the

judgment creditor), the party against whom judgment

is granted (the judgment debtor) will either willingly

comply with the judgment or be unwilling or unable to

do so, for whatever reason.

There are two forms of judgment, namely where the

court orders the judgment debtor to perform some act,

or where the court orders the judgment debtor to pay a

sum of money. The remedies to enforce compliance with

the court order differ in these two situations.

Where a judgment debtor has been ordered to perform

some act, and he fails to do so, the judgment creditor

can apply to the court for an order declaring the

judgment debtor in contempt of court and the judgment

debtor may in those circumstances be committed to jail.

In some cases, the court may order a third party, such as

the sheriff, to perform the act required of the judgment

debtor on its behalf, such as to sign documents to

transfer property.

ExecutionWhere a party has been ordered to pay a sum of money,

and he fails to do so, then the other party will be

entitled to execute against his property.

execution is the process in terms of which the judgment

debtor’s property is attached by the sheriff and sold

by public auction in order to raise funds to satisfy

the judgment. Property which may be attached can

be movable, immovable or incorporeal (i.e., share

certificates or rights of action). However, execution

will take place first against the movables and thereafter

against any immovable property.

Where an appeal is pending this suspends the execution

of the judgment until finalisation of the matter.

If the judgment debtor does not have sufficient

executable property, then another means of collecting

the money owed will need to be relied on. since in this

instance the judgment debtor is technically insolvent,

the judgment creditor may wish to apply for the

sequestration of the judgment debtor’s estate (where the

debtor is an individual), or apply for the winding-up of

the judgment debtor (where the debtor is a company).

In execution of a judgment, the following occurs:

A writ of execution is issued by the registrar of the

court. This is a document ordering the sheriff to attach

the necessary property of the judgment debtor.

The sheriff will then serve the writ on the judgment

debtor at his home or place of business. The sheriff will

then request satisfaction of the debt. sometimes the

judgment debtor will at this point pay the amount owed

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.

The TrialThe focus of any action is the trial itself. The trial is the

hearing by the court of evidence relevant to the dispute.

A single judge will be allocated to hear the matter.

Generally, the party making the claim bears the onus

of proving its claim. As such, the plaintiff usually starts

with its evidence first. Any claim must be proved on a

balance of probabilities.

Counsel for the plaintiff will usually give an opening

address to the judge. This is intended to provide the

judge with an overview of the case.

oral evidence is presented by witnesses for each of the

parties. These witnesses may be cross-examined by the

opposing side and thereafter re-examined by the counsel

who led the witness.

unless there has been agreement at a pre-trial

conference to the contrary, a document must be proved

by a witness who can testify to its origin and content.

Judgment is generally reserved and handed down once

the judge has had an opportunity to consider the matter.

In less complex matters judgment may be handed down

immediately after completion of oral argument.

Expert WitnessAn expert witness is a person who, either by way

of qualification or experience or both, has specific

knowledge in a particular area which is outside the

knowledge or experience of the court. An expert

witness will be called to express an opinion on the issues

falling within his field of expertise.

Prior notification must be given to the other party that

expert evidence will be relied upon in order to allow the

other side time to study the evidence and to properly

challenge the substance of the expert’s report through

an informed cross-examination.

Prior notification is given to the opposing party in the

form of a written notice which must be delivered at

least 15 days before trial. This notice must give the name

and occupation of the expert. At least 10 days before

the trial, a summary of the expert’s opinion must be

delivered to the other side. This must set out the opinion

of the expert and the facts on which the opinion is based.

SubpoenasGenerally witnesses will attend trial to give evidence

voluntarily. However, there may be times when a witness

will be unwilling to co-operate and appear in court. In

this instance, a subpoena may be issued by the registrar

of the court, at the request of a party, and served on

the witness by the sheriff. A subpoena is a document

which compels the witness to appear at court. It is a

criminal offence to disobey a subpoena.

The subpoena informs the witness when and where to

appear and may also require the witness to bring to

court certain documents relevant to the matter.

10 11

Enforcement of Foreign JudgmentsAs a general rule, the judgment granted by a court in a

foreign country will have no direct operation outside

that country. However, there are circumstances under

which a foreign judgment may be recognised by a court

in south Africa and where a judgment given by a south

African court may be enforced in another jurisdiction.

These circumstances will exist on the basis of either a

treaty between the countries concerned, a piece of

legislation, or on the basis of the common law of the

state in which enforcement of the judgment is sought.

In determining whether a south African judgment can be

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.

once a judgment is granted by a south African court

to enforce a foreign judgment it has the same force

and effect as any other judgment and is enforced in the

same way.

The enforcement of foreign Arbitral Awards Act provides

that a foreign arbitral award may be made an order of

court in south Africa and thereafter enforced in the same

manner as a local judgment. south Africa is a signatory

to the Convention on the recognition and enforcement

of foreign Arbitral Awards, otherwise known as the new

york Convention, which is widely considered to be the

foundational instrument for international arbitration.

It requires the domestic courts of state parties (i) to

give effect to private agreements to arbitrate; and (ii) to

recognize and enforce arbitration awards made in other

state parties to the new york Convention.

The sheriff will then prepare an inventory listing the

items which have been attached. This will then be given

to the attorney who may, at that stage or thereafter,

instruct the sheriff to take the items listed in the

inventory into his custody and sell them.

The sheriff will then sell the judgment debtor’s property

by public auction until an amount has been raised that

will satisfy the judgment and costs. This is done after

due advertisement in suitable newspapers.

Garnishee OrdersA garnishee order is another means by which the

judgment creditor may enforce a judgment. A garnishee

order allows a judgment creditor to recover a judgment

debt by attaching a money debt owed to the judgment

debtor by a third party (the garnishee).

12 13

Recovery Of Costs At the end of the trial or application, the court will

hand down judgment and will make an order as to who

must pay the costs of the trial or application. This is at

the court’s discretion. Costs will generally be awarded

in favour of the successful party. Although the purpose

of such an order is to indemnify the successful party for

the expenses it has been made to pay in order to initiate

or defend the litigation, in practice only a portion of

the costs are recoverable.

There are two basic costs orders which can be awarded

by a court:

Party and party costs, which are the necessary and

proper costs which have been incurred by the successful

party. This is the most common award given; and

Attorney and client costs, which allows for the recovery

of more costs than party and party costs and is usually

a punitive award.

In order to determine the costs due to the successful

litigant, a bill of costs must be drawn up. This can be

done by an attorney or by a costs consultant. Generally

it is more cost effective for a cost consultant to draw

up the bill. A cost consultant will usually charge a

percentage of the total of the drawn up bill.

The bill of costs will, depending on the order granted,

set out all of the costs incurred by the litigant from

the inception of the matter to its finality. This includes

attorney’s fees and disbursements such as counsel’s fees.

The bill is drawn in accordance with a High Court tariff

which provides for a set amount which can be claimed

in respect of each item included in the bill of costs (e.g.

there is a maximum amount allowed for drafting a letter

or making a telephone call, and a fixed hourly rate at

which attorneys fees can be recovered).

once the bill of costs has been drawn it is sent to

the opposing party. The opposing party can then

decide whether it wants the bill to be taxed before

the Taxing Master of the High Court or whether it is

wants to settle the claim for costs, either in full or

by negotiation. This will sometimes happen when the

opposing side does not wish to incur the additional

costs associated with taxation.

A notice of intention to tax must then be delivered to the

other party. This notice will inform the opposing party

that it has 10 days to inspect the documents or notes

pertaining to each item on the bill and 20 days to file a

notice of intention to oppose the bill. If no such notice is

given within the prescribed time period then the matter

may be set down for taxation before a Taxing Master

without further notice to the opposing party. If the bill

is opposed then a notice of taxation must be sent to the

opposing party to inform them of the date and time on

which the bill will be taxed before the Taxing Master.

At the taxation of the bill of costs, the Taxing Master

will go through each item, with reference to the tariff,

and decide whether it should be allowed, disallowed or

reduced. What is allowed by a Taxing Master is usually

very significantly lower than the actual costs incurred.

This is due to the tariff being outdated and bears little

relation to the rates charged by most attorneys and

because certain costs are not recoverable under the tariff.

The Application ProcedureAlso known as motion proceedings, the application

procedure is based on the exchange of affidavits. unlike

the trial action, the usual rule is that no witnesses

appear before the court to give evidence. The party

bringing the application is known as the applicant, and

the party opposing the application is the respondent.

To commence proceedings, the applicant will issue a

notice of motion, which sets out the applicant’s claim

and the relief sought. An affidavit which supports

the notice of motion is attached and is known as the

founding affidavit. supporting documents are attached

to the affidavit. The notice of motion advises the

respondent that if it wishes to oppose the application, it

must give notice of its intention to do so within 5 days

after it receives the applicant’s notice of motion and

founding affidavit.

After the respondent’s notice of intention to oppose

has been delivered, the respondent then has 15 days to

deliver an answering affidavit in which the allegations

made by the applicant in its founding affidavit will be

answered. The applicant may then, within 10 days,

deliver a replying affidavit if it wishes to respond to any

allegations made by the respondent in its answering

affidavit. The applicant may then apply to the registrar

for a date for the hearing.

All facts should be included in the affidavits as it is not

possible to place further evidence before the court at

the hearing without leave of the court. In addition, all

documents relevant to prove or disprove a party’s case

must be attached to the affidavits.

since all evidence is placed before the court in

affidavits a number of procedures that take place in

action proceedings are not applicable in application

proceedings. The hearing before the court is generally

limited to oral argument by the counsel for the parties.

However, the court may in certain circumstances refer

certain issues or, in special circumstances, the entire

matter, to oral evidence.

As in trial proceedings, judgment is likely to be reserved

and handed down at a later date after the judge has had

an opportunity to consider the case. In less complicated

matters judgment may be handed down immediately

after oral argument.

Calculation of Time Periods Time periods for the delivery of documents are

calculated by using “court days”, which exclude

weekends and public holidays.

The period 15 december to 15 January in every year

is regarded as of period of dies non, literally meaning

“no days” and these days are not included in the time

period allowed for delivering an appearance to defend

or a plea.

14 15

APPEAL DISMISSED

APPEAL UPHELD

APPLICATION REFUSED

WARRANT OF EXECUTIONEnd of case End of case

End of caseAPPLICATION

TO SCA/CCLEAVE TO APPEAL GRANTED

Claim dismissed

APPLICATION FOR LEAVE TO APPEAL (15 DAyS)End of case

LEAVE TO APPEAL REFUSED

End of caseAPPLICATION

TO SCA/CC

APPEAL DISMISSED

APPEAL UPHELD

APPLICATION REFUSED

End of caseEnd of caseWARRANT OF EXECUTION

WARRANT OF EXECUTION

APPLICATION FOR LEAVE TO APPEAL (15 DAyS)

Judgment granted

LEAVE TO APPEAL REFUSED

Trial

WARRANT OF EXECUTION

LEAVE TO DEFEND

PLEA AND COUNTERCLAIM (20 DAyS)

REPLICATION AND PLEA TO COUNTERCLAIM (15 DAyS)

FURTHER PLEADINGS (10 DAyS)

DISCOVERy AND OTHER PRE-TRIAL PROCEDURES

Defended Action Proceedings

Summons

NOTICE OF INTENTION TO DEFEND (10 DAyS)

SUMMARy OF jUDGMENT (15 DAyS)

LEAVE TO APPEAL GRANTED

16 17

APPEAL DISMISSED

APPEAL UPHELD

APPLICATION REFUSED

End of case End of caseWARRANT OF EXECUTION

WARRANT OF EXECUTION

APPLICATION FOR LEAVE TO APPEAL (15 DAyS)

Judgment granted

LEAVE TO APPEAL REFUSED

APPEAL DISMISSED

APPEAL UPHELD

APPLICATION REFUSED

End of caseAPPLICATION

TO SCA/CCLEAVE TO APPEAL GRANTED

Claim dismissed

APPLICATION FOR LEAVE TO APPEAL (15 DAyS) End of case

LEAVE TO APPEAL REFUSED

End of case LEAVE TO APPEAL GRANTEDAPPLICATION

TO SCA/CC

Basic overview of Litigation in the High Court – Opposed Motion Proceedings

Hearing

ANSWERING AFFIDAVIT (15 DAyS)

NOTICE OF MOTION AND FOUNDING OF AFFIDAVIT

NOTICE OF INTENTION TO OPPOSE (5 DAyS)

REPLyING AFFIDAVIT

NOTICE OF SET DOWN

WARRANT OF EXECUTIONEnd of case End of case

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