BASIC GUIDE TO CIVIL HIGH COURT LITIGATION - …

1 BASIC GUIDE TOCIVIL high COURT LITIGATIONYou think outcome. We horizons are as broad as your business 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 And AdvoCATes 02 THe LeTTer of deMAnd 02 JurIsdICTIon 03 ACTIon or MoTIon ProCeedInGs 03 THe ACTIon ProCedure (TrIAL ProCedure) 04 TrIAL PrePArATIon 10exeCuTIon of JudGMenTs 17exeCuTIon 18 GArnIsHee orders 19enforCeMenT of foreIGn JudGMenTs 20 THe APPLICATIon ProCedure 21reCovery of CosTs 22 The Bowman Gilfillan Africa GroupBowman Gilfillan Africa Group is one of Africa s premier corporate law firms, employing over 400 specialised lawyers.

2 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 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 reliable technical legal advice is always very important, the ability to deliver that advice in a coherent, relevant way combined with transaction management, structuring, negotiating and drafting skills is essential to the supply of high quality legal Group has offices in Antananarivo, Cape Town, dar es salaam, Gaborone, Johannesburg, Kampala and nairobi.

3 Our office in Madagascar, has francophone African coverage in Benin, Burkina faso, Burundi, Cameroon, Central African republic, Chad, Congo republic, Gabon, Guinea, Ivory Coast, Mali, niger, rwanda, senegal and have a best friends relationship with leadinglaw firm udo udoma & Bela-osagie, in nigeria,which has offices in Lagos, Abuja and PortHarcourt. 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 act for corporations, financial institutions, state owned enterprises and governments providing clear, relevant and timely legal advice to assist clients achieve their objectives and manage their legal and sector specific teams are utilized to provide clients with the highest standards of service.

4 In the cross-border arena the Group has extensive experience in the resources, energy, infrastructure, financial institutions and consumer goods 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 Jurisdiction refers to the authority or competence of a particular COURT to hear a matter and to grant relief in respect of that is first necessary to determine whether the high COURT or a lower COURT ( Magistrate s COURT or small Claims COURT ) has jurisdiction to hear the matter.

5 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 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.

6 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) action proceedings, the person bringing the action is called the plaintiff, and the person defending the action is called the 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.

7 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 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 different procedures are set out more fully and AdvocatesLike england, south Africa has a split bar system, consisting of attorneys and advocates.

8 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.

9 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 who have obtained right of appearance may appear in the high COURT but in complex and substantial matters the tradition of utilising counsel remains 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.

10 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. 0203is 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 of InTenTIon To defendAfter 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.