action arises from a document or documents that clearly show the indebtedness of the defendant.
public law – that part of the law dealing with statutory or public bodies, such as Telkom, their relationships with each other and their relationship with citizens of the country.
quantum – the amount being claimed in a civil case. This is a separate issue from the merits of the case and is often argued and considered separately.
reasonable – in accordance with sound understanding, fairness and justice. It is often used as a measure of what society considers “right”.
reconvention – as opposed to convention. See convention.
re-examination – literally, the “second examination”. This is the last series of questions that can be asked of a witness in a court case by his own legal representative and follows examination in chief and cross-examination. It is restricted to questions that follow on the questions put to the witness in cross-examination.
registrar of the court – the clerk of the high court who deals with the administrative side of court cases.
replication – an answer by a plaintiff to a defendant’s plea.
reply – the opportunity given to a party to respond to his opponent, either by way of a sworn affidavit in an application, an answer to a written defence (see replication) or by way of argument if in court.
replying affidavit – the third set of sworn affidavits in an application. It is the applicant’s answer to the respondent’s answering affidavit.
respondent – the party against whom an application is brought.
review – the process that is followed when a person is of the opinion that a decision was taken that affects his rights and that there was something wrong with the process that was followed in reaching that decision. Compare this to appeal.
rule nisi – a court order that calls on your opponent to come forward at a later date to say why an order in your favour (called a final order) should not be given by the court.
sentence – in criminal cases, the punishment that the court imposes on the accused after he has been found guilty, for example a fine or a prison sentence.
service/to serve – the process whereby the sheriff delivers a document to a person and afterwards gives a report of how he did so to the person who gave the instruction. This is the way in which the legal system ensures that someone receives a document.
set of facts – the total of a collection of facts about which one can determine the legal position. Often the addition or removal of a single fact can radically change the legal position.
settle/settlement – this is what happens in a court case when the parties reach an agreement about what the outcome is to be. A settlement is a contract and is almost always made an order of court, and with that the court case is ended.
sheriff – the messenger of the court who serves legal documents and court orders.
summary judgement – a shortened procedure followed in an action where a sum of money (usually) is being claimed and the plaintiff is of the opinion that the defendant does not have a defence. The defendant then sets out his defence in a sworn affidavit and the court decides whether there is merit in the defence. If there is no merit in the defence as set out, summary judgement is granted and that is more or less the end of the road for the defendant’s defence of the case.
summons – the document that initiates an action. It contains the details of the plaintiff(s) and the defendant(s), and the particulars of claim.
sworn affidavit(s) or affidavit(s) – affidavit is the shortened term for a sworn affidavit, which consists of evidence on paper. Evidence is the rendering of facts under oath. A sworn affidavit must be commissioned by a commissioner of oaths, who must ask the person making the affidavit if he knows and understands the contents thereof, if the contents are true and correct and whether he considers the oath binding on his conscience.
third party – someone who was not initially involved in a case but is brought into the matter by one of the parties because the dispute between one of the parties and the third party is more or less the same as the dispute between the original parties.
1.4 LET’S BEGIN AT THE BEGINNING
With the legal dictionary behind us, our battle is half won. However, you will have an even better understanding of the concepts explained in this book if you come to grips with certain basic legal ideas and concepts. Let’s begin at the beginning: at the sources of the law. For each set of facts (or story), a basic legal position (or set of legal principles) applies.
Let’s take a car accident as an example. Car A drives into the back of car B. There is a basic legal rule which states that if you collide with the rear end of another car, either you have been driving too fast, or you have not been keeping a proper lookout, or you have not maintained a proper following distance between you and the car in front of you. Therefore you are usually 100 per cent negligent if you collide with the back of another car. That does not mean that there is not often uncertainty over the legal position applicable to a specific set of facts. For example, if you were to come over a rise on a misty night and suddenly encounter a stationary car without lights or warning signals in the middle of the road, would you still be 100 per cent negligent if you did not swerve in time and avoid hitting the car?
This illustrates one of the reasons people go to court: because the two parties both think that their interpretation of the legal position is correct. But where does the basic “legal position” come from and how does one obtain clarity, or at least direction, when one is uncertain? Lawyers look for answers in the sources of the law.
The first and oldest source in South Africa is called the common law and consists of the law we have already discussed: Roman law as the Dutch applied it and imported it to the Cape. British common law was added to this when the British took over the Cape and added their own stamp to the legal system. However, various legal systems already existed in the Cape when Van Riebeeck and the Dutch East India Company arrived here, such as the Xhosas’ legal system, the Zulus’ legal system, the Sothos’ legal system, and so on. These systems are grouped together and called indigenous law, and this too added its own flavour to our legal system. This was supplemented by the arrival of the Malay slaves, who brought with them their own (chiefly Islamic) legal system, in addition to their delicious cuisine.
These legal ingredients have developed over time into a uniquely South African bredie through their interpretation by our courts. Unlike in the American legal system, our courts follow what is called legal precedent, which means that courts are bound by the judgements previously given by other courts on that specific matter.
Legislation plays an even more important role as the source of the legal position on matters. Of all laws, the South African Constitution is undoubtedly the most important, because these days it is the yardstick against which the validity of all laws is measured, and also according to which the common law is interpreted and developed.
In addition, judges also take the legal position in other countries into account if it is akin to the set of facts under consideration by the judge or can shed light on how the situation should be handled.
Finally, they also look at what academics have to say on the subject. However, the last two sources are not binding on judges and the opinions expressed in them have only persuasive value.
