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Litigation is a term used to refer to the process of contesting and resolving disputes, within the legal system and refers to inter alia legal disputes, lawsuits or other legal proceedings in court.
Although filing a lawsuit refers to a specific stage in the litigation process, legal disputes are not necessarily limited to actions taken in court and can be linked to Arbitrations, Mediations and various other methods used to resolving disputes.
Civil litigation through Court proceedings are usually initiation through Motion / Application or Action proceedings (refer to the relevant links on this site). One must be careful to chose the correct method to bring a dispute to Court, since an adverse Legal Cost Order may be obtained against a party, even if they make honest mistakes.
In a way, litigation is the entire series of steps that a person will need to go through to resolve a dispute starting from the investigation of the cause of action all the way to filing appeals in the Supreme Court of Appeal or Constitutional Court.
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Motion proceedings are also generally referred to as applications / application proceedings.
Application proceedings are usually initiated through a Notice of Motion, Founding Affidavit and Annexures that supports / evidences the allegations contained in the Founding Affidavit.
Applications can be urgent, “semi-urgent” or done in the normal course of proceedings, as determined by the time-lines contained in the Rules of the relevant Court.
When an application becomes opposed, the opponent(s) / Respondent(s) informs the Applicant that he wishes to oppose proceedings by serving a Notice on the Applicant and filing same at Court.
There can be more than one (1) applicant and / or Respondent involved in a dispute.
Thereafter, the Respondent delivers an Opposing / Answering Affidavit.
The Applicant may deliver a Replying Affidavit, to clarify existing issues that arose from the Respondent(s) affidavit.
The matter is then set down for hearing and argued by the parties’ legal representatives.
Judgement follows after the parties argued the matter.
The aforesaid is a simplified version of the main elements of an application and is not meant as an exhaustive and all-inclusive source of information about how applications are meant to be conducted.
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An unopposed motion is a written application to Court for a certain order, ruling or direction that is not contested by the other party or parties to the lawsuit.
A party who fails to timeously file written opposition may still appear at the hearing and orally oppose the unopposed motion, but risks the court making an adverse ruling or adverse cost order against the Respondent(s).
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Rescission of judgment refers to the legal process of challenging and overturning a previous court judgment. It provides an opportunity to rectify errors or unfair outcomes that may have occurred during the original judgment. Rescission is typically sought when there were irregularities or when new evidence has emerged that could potentially impact the outcome of the case.
Knowing when to apply for rescission of judgment is crucial. You may consider seeking rescission if you believe there were errors or irregularities in the original judgment, such as procedural deficiencies, a failure to consider vital evidence, or a lack of proper legal representation. Additionally, if new evidence has emerged that could significantly impact the outcome of your case, pursuing a rescission application may be appropriate.
To obtain a judgment rescission, you need to follow a specific legal process. Here are the general steps involved: Consult with an experienced attorney: Seek guidance from a knowledgeable attorney who specializes in judgment rescission cases. They will assess your situation, review the original judgment, and determine if you have valid grounds for seeking rescission. Gather relevant documentation: Collect all relevant documents related to your case, including the original judgment, any supporting evidence, and any new evidence that may have emerged since the judgment was made. Assess the grounds for rescission: Your attorney will carefully analyze the original judgment and identify any errors, irregularities, or new evidence that may warrant a rescission. They will determine the legal basis for your rescission application. Prepare and file the application: Your attorney will draft a comprehensive application for rescission, outlining the grounds for rescission and providing supporting evidence. The application will be filed with the appropriate court and served to the opposing party. Court review and hearing: The court will review your application and may schedule a hearing to evaluate the merits of your case. It is crucial to present a strong argument during the hearing to persuade the court to grant the rescission. Court decision: Based on the evidence and arguments presented, the court will make a decision regarding the rescission application. If the rescission is granted, the original judgment will be set aside, and the case will be reopened for further proceedings.
the high court follows established legal principles and procedures for rescission applications. These principles typically include: Time limitations: There is a specified time frame within which a rescission application must be filed after the judgment is made. It is crucial to adhere to these time limitations to avoid dismissal of the application. Grounds for rescission: The high court will consider specific grounds for rescission, such as procedural irregularities, errors of law, fraud, new evidence, or lack of proper legal representation during the original proceedings. These grounds may vary depending on the jurisdiction and applicable laws. Merits of the case: The high court will carefully evaluate the merits of the rescission application, considering the evidence presented and the legal arguments made. The court will assess whether there are valid reasons to set aside the original judgment. Judicial discretion: The high court exercises judicial discretion in deciding whether to grant or deny a rescission application. The court will consider factors such as the interests of justice, the impact on the parties involved, and the overall fairness of the decision. It is essential to consult with a qualified attorney who specializes in high court matters to ensure you understand the specific rules and procedures applicable to your jurisdiction.
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Summary Judgment forms part of the action proceedings (initiated through Summons) and is a method to shorten the action proceedings under certain circumstances, as outlined below.
Summary Judgment is regulated by the Rules of Court and based on claims relating to a liquid document, liquidated demand, delivery of specified movables or ejectment.
Summary Judgment is requested after a Defendant delivered a Plea (during the pleading phase) and can be opposed through delivery of an affidavit or appearance in Court (if the Presiding Officer so permits).
The result of a successful request for Summary Judgment is a Judgment in favour of the person or entity initiating the procedure.
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A Request for Default Judgment usually occurs where a Defendant has not Defended an action by inter alia failing to timeously deliver a Notice of Intention to Defend or Plea (if barred). (This list is not exhaustive and the Rules of Court should be consulted)
The result of a successful Request for Default Judgment is Judgment in favour of the party who initiated same.
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Execution of a Judgment is what usually occurs after Judgment was obtained and a Bill of Cost was taxed by the Taxing Master of the Court.
Essentially the process requires obtaining a Warrant and instructing the Sheriff to attach and / or remove the property of the person or entity against whom Judgment was obtained, to later be sold or to satisfy the Judgment debt.
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When one initiates a civil dispute (through Action or Motion / Application proceedings), a claim for damages is based on either a contract or delict.
A delictual claim is a claim that has its origin from the Common Law, which has developed over many years.
A delictual claim, such as damages arising from a motor vehicle collision, personal liability claims, damages arising from fraud, theft etc. contains certain elements, briefly outlined here, that must be proven by the person claiming it:
Conduct by the other party;
Unlawfulness of the aforesaid conduct;
Fault attributed to the unlawful conduct;
Damages; and
the conduct caused the person or entity’s damages (“causality”).
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(Please refer to Opposed and Unopposed Motion links in this site)
Urgent applications are Applications / Motions brought to Court on an Urgent Basis.
This is a risky approach, since an additional hurdle / obstacle is created compared to proceedings proceeding during the normal course, meaning in accordance with the normal time-lines contained in the Rules of Court.
Urgent applications are normally allocated on Tuesdays and must be finally enrolled on a Thursday preceding the Tuesday on which the matter is set down for hearing.
At all times, an opponents right to a fair trial must be considered when initiating Urgent Application, since the penalty can be severe, being a hefty Order pertaining to the legal costs of your opponent, if you are the Applicant.
If you are the Respondent, properly opposing an Urgent Application is also vital, if you wish to avoid the dire consequences of such an Order.
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Contractual disputes may arise from various forms of unresolved disputes pertaining to inter alia if an agreement actually exists between two (2) or more parties, whether or not the agreement was in writing, who the actual parties to an agreement are, what the terms and conditions, rights and obligations established by the agreement are, differences in interpretation of an agreement and even goes as far as considering the surrounding circumstances or reasonable / lawfulness of the agreement itself.
It is extremely important to take various precautions and mitigating risks prior to entering an agreement. A Legal practitioner should be appointed to draft an agreement and advise parties properly, as to avoid disputes.
However, no document is perfect and when the time arise to resolve a dispute, through various means including mediation (albeit formal or informal), arbitration or litigation, it is paramount to be advised properly regarding your rights and obligations established in terms of an agreement.
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(Please refer the Delictual Disputes link)
Time and again parties are uninsured, is sued by insurance companies or wants to sue an uninsured party or insurance company, pertaining to matters where a party was involved in a motor vehicle accident.
This is a highly specialized, complex and intricate area of the South African legal system.
One of the complexities that arise is explaining the elements of a delict, that must be proven to be successful, to a client and more so the provisions relating to the Apportionment of Damages Act, 1956, where both parties involved in an accident can be considered wrongdoers and be held liable for each other’s damages to a certain degree. It is important to take cognizance of and be advised properly before spending a lot of money on costly litigation, which could have detrimental adverse consequences.