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 (like poets) are notorious for losing clients in jargon, often steering clients into unnecessary legal situations.
Knowing a few key aspects about 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 2 methods to proceed in court: one is via action which is commenced with the issuing of a summons, the other by way of application which is commenced via the issue of a notice of motion and supporting affidavits.”
Veldhuizen outlines the fundamental difference between the two options as follows:
- 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.
- 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 two to three 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 advisors 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 advisor 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.”