If you are necessitated to sue someone in South Africa, it is important to understand the procedural intricacies inherent in instituting legal proceedings. Whether you have a legal claim for damages, want to resolve a dispute, protect your rights, or approach a court for legal relief, the initiation of legal proceedings requires meticulous consideration and adherence to the prescribed legal protocols.
The law of civil procedure enables individuals to take legal action when their rights are violated, when they seek redress for damages, or when they need to defend themselves against legal claims brought against them.
In civil proceedings, the parties involved typically represent their own interests and are usually private individuals. As such, you will often find individuals, businesses, and/or organizations suing or being sued by other individuals, businesses, and/or other organizations. To this end, civil procedure is not to be confused with criminal procedure, where the state acts on behalf of the general public in taking legal action against a person who infringes the rules of criminal law.
The proceedings in civil litigation generally fall into two categories, namely “action procedure” and “application procedure”. For more information as to what the application procedure involves, please refer to our article titled “motion proceedings; what they are and when to use them?”.
When the action procedure is invoked, the parties involved are referred to as the “plaintiff”, being the person who institutes the claim, and the “defendant”, being the person against whom the legal action is brought.
Unlike criminal proceedings, where the State usually decides to take legal action against a wrongdoer, civil litigation is voluntary. In civil cases, the plaintiff has the discretion to decide whether they want to institute civil proceedings in the civil courts, granting them considerable control over the process.
The rules governing the law of civil procedure are contained in various sources, such as legislation, the supportive rules of court and precedent. For example, the procedures of the High Court are set out in the Superior Courts Act 10 of 2013, which must be read with the uniform rules of the High Court, whereas the procedures of the Magistrates’ Courts are set out in the Magistrates' Courts Act 90 of 1993, which must be read with the rules of the Magistrates' Courts.
Each Act, along with its corresponding rules, outlines the main steps involved in civil litigation.
In this regard, Section 34 of the Constitution provides that “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.
As such, the primary aim of civil procedure is to assist litigants in having their legal rights appropriately protected and procedurally enforced, whereby action proceedings are, subsequently, utilized when a real and substantive dispute of facts need to be decided by a court of law.
To this end, action proceedings are instituted and/or initiated against the defendant by summons and is ultimately decided at trial through the exchange of pleadings and the presentation of documentary and/or oral evidence.
A summons is signed by the plaintiff, or the Plaintiff’s legal representative and is issued by a registrar of the High Court, or by a clerk of a District Magistrates’ Court, or by a registrar of a Regional Division of a Magistrates’ Court.
The summons should be addressed to the sheriff and direct the sheriff to inform the defendant, by service of the summons, of the nature of the plaintiff’s claim, the procedural steps and the specified time limits to be followed by the defendant, should the defendant elect to dispute the plaintiff’s claim. Additionally, a summons must be issued together with a notice drawing the defendant’s attention to the possibility of alternative proceedings in the form of a court annexed mediation with reasons as to why the plaintiff agrees or does not agree to this alternative process.
Furthermore, the issue and service of a summons not only determines the jurisdiction of the court, but, amongst other, also interrupts the running of prescription in terms of Section 15(1) of the Prescription Act 68 of 1969 (hereinafter referred to as “the Prescription Act”). This is important because the Prescription Act provides, amongst other, that a debt shall be extinguished after 3 (three) years. Additionally, should a principle debt prescribe, then any subsidiary debt which arose from the principle debt will also be extinguished by prescription [Section 10(1)-(2) & Section 11(d)].
Moreover, a Summons will usually consist of two separate documents, being the summons itself and an annexure to the summons, being the plaintiff’s complete particulars of claim, which consists of a statement of all of the material facts which the plaintiff relies upon in support of the cause of action.
Action proceedings can be relied upon when the cause of action is based on, for example, a matrimonial claim, such as divorce, a breach of contract, or for delictual claims for damage with an established quantum, as well as for any other illiquid claim which does not fall within the parameters of a “debt or liquidated demand”.
In addition to the above, and in order to constitute a valid court process, the summons must also, amongst other, direct the sheriff to inform the defendant that if they dispute the claim and wish to defend the action, the defendant must give their notice of intention to defend within 10 (ten) days of service of the summons on the defendant, where after the defendant is required to deliver either a plea, an exception, or an application to strike out within 20 (twenty) days after giving notice to defend, if any.
Please note that any action against the State, or against any Minister, Deputy Minister, Premier or a member of an Executive Council, officer or servant of the State, in an official capacity, the defendant must be allowed a period of no less than 20 (twenty) days after service of the summons to deliver a notice of intention to defend.
In conclusion, navigating the complexities of legal proceedings, particularly action proceedings, can be daunting and intricate. While individuals have the right to represent themselves in court, it is highly advisable to seek the knowledge and assistance of an attorney to significantly enhance the efficiency, effectiveness, and overall success of the litigation process, as such expertise will not only ensure that all legal protocols are meticulously followed, but will also be of invaluable support in assessing the strength of your case, advocating for your rights, and ultimately striving for a favorable resolution.
JW Wessels and Partners Incorporated
Kindly be advised that we assist with the drafting and issuing of summons and particulars of claim in the High Courts, District Magistrates’ Courts and the Regional Divisions of the Magistrates’ Courts, amongst a wide array of other professional legal services, in ensuring that the statutory requirements of action proceedings are complied with. Should you have any additional questions, please do not hesitate to contact us for more information.
Disclaimer
The information contained in this site is for informational purposes only and should not be construed as legal advice on the subject matter. One should not act, alternatively, refrain from acting based on the aforementioned content conveyed on our site without first consulting a legal practitioner. Additionally, the contents of this article contain general information which may not reflect your current situation. As such, we disclaim all liability for actions which one might take, alternatively, fails to take based on the content displayed on this site.
