Summary Beginners guide to law students(chapter 9)
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Course
Bachelor Of Accounting (BCA012)
Institution
University Of Johannesburg (UJ)
The chapter is summarised in depth with all the vital and key aspects. The law book can be very repetitive with multiple case studies. These summaries shorten the case studies and focus on the key points of the chapter since it can be hard to focus and understand the chapter, especially with the la...
THE LAW OF CIVIL PROCEDURE
Differences between a CRIMINAL CASE and a CIVIL CASE
Criminal case Civil case
A criminal case is brought as an offence in A civil case is filed as a civil suit in court.
court
Criminal cases are mostly started by the Civil cases are often started with the
Police and Office of the Director of Public assistance of a lawyer.
Prosecution or State Attorney/prosecutor
Often where a crime is found to have been In civil cases, the side that wins will in most
committed the outcome in criminal cases is cases get a declaration such as damages,
punishment (imprisonment, fines, injunctions, etc.
community service).
In criminal cases, the offense or prohibited In civil cases, rules that are used are
act is often found in Penal Code and other contained in Civil Procedure Laws.
Penal laws.
The government brings the criminal case to In civil cases, the action is taken by an
court. individual
A private law dispute arises between parties when one threatens to violate a
subjective right of another.
The law of CIVIL PROCEDURE is not only available to help legal subjects in the case of
a violation, but also in a case where such violations does not exist.
THE LAW OF CIVIL PROCEDURE CAN BE USED FOR THE
FOLLOWING PURPOSES.
Declaratory order: The court may be asked to clarify a position in fact or law.
An Interdict: it is used when there is a threatening violation of a right. There are two types of
interdicts, namely;
Prohibitory; an order instructing a party to cease doing something.
Mandatory; an order instructing a party to do something .
Comprehension by making a monetary payment: it used when a party has suffered a
damage due to a delict or a contract.
Specific performance: an order instructing a party that has not carried out their obligation
into a contract to do so.
DIFFERENT TYPES OF CIVIL PROCEEDINGS.
Parties decide whether to initiate proceedings. There are two types at their disposal. The
ACTION and APPLICATION PROCEEDINGS.
For deciding the most appropriate, the main question is whether there is a
fundamental/material dispute between the parties.
Material dispute: there is a significant factual question which parties disagree on and which
the court will have to decide. If there is a material dispute there should be ACTION
, PROCEEDINGS whereas when there are no material disputes there should be APPLICATION
PROCEEDINGS.
ACTION PROCEEDINGS: consist of written statements made and delivered between
the parties, setting out the material facts on which the parties rely in support of their
claim/defence (only material facts and not evidence included)By the way of
summons ,when a fundamental difference exists with respect to the facts of the
case. FOR EXAMPLE; a car accident when the parties differ on the facts of the
case .The two parties are referred to as Plaintiff (party which initiates proceedings)
vs Defendant (party against whom proceedings are initiated)
APPLICATION PROCEEDINGS: The whole process is handled through documentation.
Supporting evidence is contained in the document /there is no separation between
the pleading and evidence stage . The hearing in motion court consists of legal
arguments by legal representatives. Used where there is no dispute on material
facts in urgent matters, in terms of a statute.
STAGES OF THE PROCEEDINGS
1. Pleading stage: commences by way of issuing of summons and exchange of pleadings.
Pleadings are formal documents in which each litigant is required to place on record all
material facts (facta probanda or facts in issue) upon which the plaintiff ‘s claim or the
defendant’s defence or counterclaim is founded. The pleadings are served on the opposing
party and filed in court. Pleadings are not made under oath and therefore do not constitute
evidence.
PLEADING =all the documents that the parties exchange .They contain statements by the
parties with regards to the facts .It also sets out which facts the parties agree on, and which
are in dispute .The purpose(1) reduce the dispute to a condensed version (2)prevents parties
from startling each other and the court (3)to make the PO familiar with the case beforehand
2. Trial Stage: The SA court proceedings are (1) accusatorial and not (2) inquisitorial. The two
parties oppose each other and decide on which documents to present. The judge plays a less
active role .Simply acts as a “referee “and supervises the process to ensure the rules are
compiled with .
POSSIBLE SUBSEQUENT PROCEEDINGS
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