Knowl­edge of some le­gal con­cepts cru­cial

Cape Argus - - MONEY - | Sup­plied

YOU ARE NOT alone if you’ve found your­self caught dumb­founded in the mid­dle of le­gal talk be­tween at­tor­neys, sim­ply nod­ding your head in agree­ment, qui­etly hop­ing things are go­ing your way.

At­tor­neys are no­to­ri­ous for los­ing clients in jar­gon. Know­ing a few key as­pects of the South African le­gal frame­work could save you a lot of time and money.

PJ Veld­huizen, man­ag­ing di­rec­tor of Cape-based at­tor­ney firm Gil­lan and Veld­huizen In­cor­po­rated, says that a start­ing point is to un­der­stand the le­gal process that your at­tor­ney has sug­gested.

“Fun­da­men­tally, there are two meth­ods to pro­ceed in court: one is via ac­tion, which com­mences with the is­su­ing of a sum­mons, the other by way of ap­pli­ca­tion which com­mences via the is­sue of a no­tice of mo­tion and sup­port­ing af­fi­davits.”

Veld­huizen out­lines the fun­da­men­tal dif­fer­ence be­tween the two op­tions as fol­lows:

1. A sum­mons will ul­ti­mately re­sult in a trial be­ing held where ev­i­dence will be heard and ver­sions tested in per­son and in front of a pre­sid­ing of­fi­cer. 2. In an ap­pli­ca­tion, a mat­ter will be de­cided on the ba­sis of op­pos­ing af­fi­davits and le­gal ar­gu­ment pro­duced in court through rep­re­sen­ta­tion by at­tor­neys or ad­vo­cates.

Pro­ceed­ing via ap­pli­ca­tion has the ben­e­fits of speed of be­ing heard, due to the fact that mat­ters are al­lo­cated dates for hear­ing more ef­fi­ciently. Ur­gent mat­ters can be heard within hours or days, whereas less ur­gent mat­ters will be heard within 6 to 8 months.

In con­trast, ac­tions are typ­i­cally heard only at trial some 2 to 3 years af­ter be­ing filed and these pro­ceed­ings can go on for years.

One only has to look at the his­toric sil­i­co­sis case, pos­si­bly one of the long­est-run­ning civil cases in South African his­tory, which was set­tled af­ter some 14 years of lit­i­ga­tion com­menced. Iron­i­cally, a com­pro­mise set­tle­ment was reached early this year in “a bid to avoid long-drawn-out lit­i­ga­tion pro­cesses”.

The glar­ing ques­tion, then, is: Why not al­ways pro­ceed with an ap­pli­ca­tion? Veld­huizen ex­plains that the sim­ple rea­son is that if there is to be a dis­pute of fact, which can­not be re­solved on the court pa­pers, the ap­pli­ca­tion will be de­cided on the ba­sis of the re­spon­dents ver­sion and the ap­pli­cant could stand to be thrown out of court with an ap­pro­pri­ate cost or­der.

He warns that of­ten a stub­born or ob­sti­nate re­spon­dent in an ap­pli­ca­tion will seek to “throw up enough dust” so as to cre­ate dis­putes of fact which can­not be re­solved on the pa­pers.

“Ap­pli­cants and their le­gal ad­vis­ers should care­fully con­sider where a dis­pute of fact should be an­tic­i­pated, to avoid po­ten­tially costly out­comes of an ap­pli­ca­tion that could be dis­missed by the pre­sid­ing of­fi­cer.

“Be­cause the par­ties are not phys­i­cally giv­ing ev­i­dence and sub­mit­ting them­selves to the rigours of giv­ing oral ev­i­dence, dis­putes of facts will gen­er­ally not be en­ter­tained.”

The ac­tion pro­ce­dure, although not as ef­fi­cient in terms of tim­ing, is a more ap­pro­pri­ate route where dis­putes of fact ex­ist.

The par­ties in an ac­tion are re­quired to give ev­i­dence in per­son and un­der oath and are sub­ject to vig­or­ous cross-ex­am­i­na­tion and there­after re-ex­am­i­na­tion, and, at times, ques­tions by the court it­self as to their ver­sion and the accuracy thereof.

It is only through this process that dis­putes of fact can be re­solved in favour of one or other party. This can­not be achieved on pa­per.

Veld­huizen sug­gests, in or­der to avoid un­nec­es­sary waste of not only the court’s time, but also the costs of lengthy lit­i­ga­tion “it may be pru­dent if con­sid­er­ing to go via the ap­pli­ca­tion pro­ce­dure that your le­gal ad­viser in any let­ter of de­mand, in­vite the other party to iden­tify any dis­pute of fact or to set out any po­ten­tial dis­pute of fact so that the par­ties can choose whether ap­pli­ca­tion or ac­tion is ap­pro­pri­ate pro­ce­dure to fol­low”.

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